Kerala High Court
Subash @ Achu vs State Of Kerala on 25 June, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 25TH DAY OF JUNE 2025 / 4TH ASHADHA,
1947
CRL.A NO. 97 OF 2014
AGAINST THE JUDGMENT DATED 27.01.2014 IN SC
NO.378 OF 2012 OF ADDITIONAL SESSIONS JUDGE, PALA
ARISING OUT OF CP NO.45 OF 2012 OF JUDICIAL MAGISTRATE
OF FIRST CLASS ,ERATTUPETTA
APPELLANT/ACCUSED:
SUBASH @ ACHU,
AGED 36 YEARS,
S/O.RAGHAVAN, CHOKKATTU HOUSE, PALLIPPADI
BHAGOM, THEEKOY KARA, THEEKOY VILLAGE,
KOTTAYAM DISTRICT.
BY ADVS.
SMT.DIVYA C BALAN
SHRI.P.D.SUBRAMANIAN NAMPOOTHIRI
SHRI.K.N.SUGATHAN
SHRI.SIDHARTH BIMAL
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
17.06.2025, THE COURT ON 25.06.2025 DELIVERED THE
FOLLOWING:
2025:KER:45998
Crl.Appeal No.97/2014 2
"CR"
A. BADHARUDEEN, J.
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Crl.Appeal No.97 of 2014
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Dated this the 25th day of June, 2025
JUDGMENT
The sole accused in S.C.No.378/2012 on the files of Additional Sessions Judge, Pala, assails conviction and sentence imposed against him as per judgment dated 27.01.2014 in this appeal. Respondent is the State of Kerala.
2. Heard the learned counsel for the accused/appellant and the learned Public Prosecutor representing the prosecution side.
3. I shall refer the parties in this appeal as 'prosecution' and 'accused' hereafter for easy reference.
4. Perused the trial court records and the judgment under challenge.
5. In this matter the accused was tried after framing charge 2025:KER:45998 Crl.Appeal No.97/2014 3 for the offences punishable under Sections 452, 294(b), 354 and 307 of the Indian Penal Code (`IPC' for short). The prosecution case is that at 5.30 p.m on 20.05.2012 the accused entered in the middle room of house No.55 in Ward No.5 of Teekoy Grama Panchayat while PW3 alone was there and uttered obscene words on her. Then the accused pulled the tuft of PW3's hair and pushed her down. When PW3 got up, the accused attempted to murder PW3 by cutting on her neck and on her right palm by using a folding knife, a dangerous weapon.
6. Trial court examined PW1 to PW12 and Exts.P1 to P22 and M.O No.1 to M.O No.5 were marked on the side of the prosecution. But no defence evidence was adduced by the accused.
7. Finally, the trial court found that the accused committed the offences punishable under Sections 452 and 307 of IPC and he was sentenced as under:
"The accused is sentenced to undergo simple imprisonment for two years for offence U/s 452 IPC and to pay a fine of Rs.5,000/-. He is further sentenced to undergo rigorous imprisonment for four years for offence U/s 307 IPC and to pay a fine of Rs.10,000/- in default simple imprisonment for three months. The sentences shall run concurrently. MOs.1 to 5 being valueless, shall be destroyed after the appeal period is over. The period in which he was in custody shall be set off from the sentence."
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8. The learned counsel for the accused argued highlighting 4 points to upset the trial court verdict. According to him there is delay of 18 hours in registering the FIR. Further in this matter, crime was registered recording the statement given by PW3. But in the FIS there is no whisper regarding any attempt on the part of the accused to commit murder of PW3. It is also pointed out that no independent witnesses either cited in the final report or examined to prove the guilt of the accused beyond reasonable doubt that apart in M.O1, no blood stains were found as per the FSL report and the shadows doubt as to the use of M.O1 in committing crime. On these grounds enlarging benefit of doubt, the accused is liable to be acquitted.
9. Per contra, the learned Public Prosecutor vehemently opposed these contentions. According to the learned Public Prosecutor, the occurrence was at 5.30 p.m on 20.05.2012 and crime was registered on the next day recording the statement of PW3 marked as Ext.P1. Therefore, there is no delay in registering the FIR. It is also pointed out by the learned Public Prosecutor that FIS was given by PW3, the injured, while she was at the hospital. Therefore, PW3, who was under a trauma, might 2025:KER:45998 Crl.Appeal No.97/2014 5 not be able to state about the attempt of murder. But in the additional statement recorded after her initial information, she spoke about the attempt to commit murder. Therefore, the argument at the instance of the petitioner in that regard is not sustainable. Regarding absence of independent witnesses, the learned Public Prosecutor would argue that since the occurrence was inside the house where PW3, the victim, who is the one and only witness to the occurrence, was alone, the contention that there is no independent witnesses to the occurrence is not sustainable. Since the same is an improbability, this contention also must fail. Regarding absence of blood stains on M.O1 knife also, the learned Public Prosecutor would submit that M.O1 was recovered when the same was produced by the accused after preparing Ext.P5 mahazar, i.e on 21.06.2012, after 41 days of the occurrence. Therefore, absence of blood stains as argued by the learned counsel for the accused is natural.
10. Having addressed the rival arguments, the questions pose for consideration are:
(i) Whether the trial court went wrong in finding that the accused had committed offence punishable under Section 307 of IPC?
2025:KER:45998 Crl.Appeal No.97/2014 6
(ii) Whether the trial court went wrong in finding that the accused had committed offence punishable under Section 452 of IPC?
(iii) Whether the judgment would require interference in any manner?
(iv) The order to be passed? Point Nos.(i) to (iii)
11. In this case Ext.P1, FIS was given by PW3, the victim of this occurrence, who was at the rental house of PW1, her sister, at the time of occurrence. During her examination she supported the prosecution case with regard to recording of her statement and also her admission at the MCH, Kottayam after the occurrence with injuries on neck and palm. According to PW3, she sustained injuries at the rental house of PW1 at about 5.30 pm on 20.05.2012 when she reached the said house in connection with the marriage of her sister by name Renjini. PW3 testified further that, the accused came to the house in search of Anish (PW2), the husband of her married sister (PW1). When he was informed that Anish was not there, the accused abused her and threatened that she would not allow Anish to reside in Mangalagiri or Teekoyi. At this time, she was in 2025:KER:45998 Crl.Appeal No.97/2014 7 the middle room of the house and she came out. When the accused used abusive words against her, she got inside the house. Then the accused followed her, trespassed on the house and caught hold of the tuft of her hair and pulled her down. When she woke up, the accused took a knife and brandished the same towards her neck and she evaded. Again he attempted to cause injury on her neck and the same caused injury on the left side of her neck. Again, though the accused brandished the knife to cause injury on her neck, she caught hold of the knife and thereby her right palm was injured. Nobody other than PW3 was present at the time of occurrence. According to PW3, if she would not have caught on the knife, the accused would have killed her. She also deposed that there were no houses near the rental house where the incident occurred. On hearing the noise, the wife of the accused reached and PW3 asked her to take back the accused and the wife along with the accused went back. PW3 identified the accused at the dock after stating that the accused was familiar to her for 3-4 years. She also deposed about her treatment at MCH, Kottayam by putting stitches and bandages. She identified the signature in Ext.P1 and also identified M.O1 knife used by the accused to cause injuries on her.
2025:KER:45998 Crl.Appeal No.97/2014 8 She also identified the churidhar and top worn by her at the time of occurrence as M.Os 2 and 3 and ' kavi dhothi ' and ' thorthu ' worn by the accused as M.Os 4 and 5. During cross examination one question was asked regarding how many times the accused brandished the knife against her with reference to her previous statement and she answered that she did not remember what was stated in the FIS. She also denied the suggestion that the accused was seen by PW3 for the first time and affirmed that she had prior familiarity with him. Even though she was subjected to cross examination, nothing extracted to disbelieve her version in the matter of occurrence. PW2 examined in this case is the husband of PW1 and he supported the events after the occurrence with reference to PW3 in the hospital. Ext.P2 mahazar was marked through PW2, who is the husband of PW1 as he supported the same. Production of M.O2 and M.O3 before the police, was deposed by PW5, the father of PW3. As per Ext.P5 mahazar, M.O1 knife was recovered when the same was produced by the accused before the court as on 21.06.2012. PW9, who was examined to prove Ext.P5, also supported Ext.P5. Though PW6, who admittedly is another friend of the accused also admitted his signature in the mahazar, 2025:KER:45998 Crl.Appeal No.97/2014 9 and testified that Ext.P5 mahazar was pertaining to recovery of a knife. PW7 examined is Mr.Joseph, who is the owner of the rental house and he supported entrustment of house to PW1 on rent. Ext.P6 is the site plan marked through PW8, the Village Officer. PW10, the grade Sub Inspector of Police, Erattupetta Police Station as on 21.05.2012 registered FIS in this crime regarding the statement of PW3 marked as Ext.P1 and registration of Ext.P7, FIR. He also prepared Ext.P2 scene mahazar and incorporated offence under Section 307 of IPC as per Ext.P8 report. Investigation in this crime was conducted by PW11, the then Circle Inspector of Police, Erattupetta Police Station. He deposed about the investigation at his option and it was through him, in which Exts.P9 to P21 were marked.
12. PW12 examined in this case is Dr.Sreekanth and he was examined to prove Ext.P21, wound certificate pertaining to PW3 when she was taken to MCH Kottayam. He deposed about the examination of the victim and also deposed about the injuries sustained by her, viz. (i) lacerated wound 10 X 1 X 1 cm on the right palm, (ii) another lacerated wound 3 X 1 cm on the left side of the neck. He also opined that the injuries could be caused by using weapon like M.O1, a folding knife. He 2025:KER:45998 Crl.Appeal No.97/2014 10 also deposed that neck is a vital part of the body. During cross examination he stated that both the injuries are grievous in nature. Injury No.(ii) is also grievous, because the same is on the neck.
13. In the instant case the question to be addressed is whether the prosecution succeeded in establishing the offences under Section 452 and 307 of the IPC with the ingredients thereof?
14. Tracing the ingredients to attract offence under section 452 of IPC, reference to Section 442, 441 and 452 of IPC is necessary. Section 442 of IPC defines `house trespass' and the same reads as under:
"442. House-trespass.- Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".
15. Section 441 of IPC defines criminal trespass and the same reads as follows:
"441. Criminal trespass. - Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
16. So, doing an act by entering into or upon property in the 2025:KER:45998 Crl.Appeal No.97/2014 11 possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or remaining in any building, tent or vessel used as a human dwelling or any building used as a place of worship, after criminally trespassing upon the same is said to commit the offence of house trespass, punishable under section 452 of IPC.
17. Similarly, in order to find out the ingredients to attract offence under Section 307 of IPC, it is necessary to extract the said provision as under:
"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 imprisonment for life, or to such punishment as is herein before mentioned."
Thus the ingredients are;
(i) That the accused did an act;
(ii) That the act was done with intention or knowledge and under such circumstances to cause a bodily injury as the accused knew to be likely to cause death or that such bodily injury was in the ordinary course 2025:KER:45998 Crl.Appeal No.97/2014 12 of nature to cause death, or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury a is likely to cause death; and
(iii) That the accused had no excuse for incurring the risk of causing such death or injury.
In other words, the ingredients are;
(i) that the death of a human being was attempted;
(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and
(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as:
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury (see 2025:KER:45998 Crl.Appeal No.97/2014 13 decision in Chimanbhai Jagabhai Patel v. State of Gujarat, reported in AIR 2009 SC 3223 : (2009) 11 SCC 273).
18. The first part makes any act committed with the intention or knowledge that it would amount to murder if the act caused death punishable with imprisonment up to ten years. The second part makes such an act punishable with imprisonment for life if hurt is caused thereby. Thus even if the act does not cause any injury it is punishable with imprisonment up to 10 years. If it does cause an injury and therefore hurt, it is punishable with imprisonment for life (see decision in Pasupuleti Siva Ramakrishna Rao v. State of Andhra Pradesh, reported in 2014 (2) Scale 417 : (2014) 5 SCC 369).
19. In the decision in State of Madhya Pradesh V. Saleem, reported in (2005) 5 SCC 554, the Apex Court held that to sustain a conviction under Section 307 IPC, it was not necessary that a bodily injury capable of resulting in death should have been inflicted. As such, non- conviction under Section 307 IPC on the premise only that simple injury was inflicted does not follow as a matter of course. In the said judgment, it was pointed out that the court has to see whether the act, irrespective of its 2025:KER:45998 Crl.Appeal No.97/2014 14 result, was done with the intention or knowledge and under circumstances mentioned in the section. The position that because a fatal injury was not sustained alone does not dislodge Section 307, IPC conviction has been reiterated in Jage Ram v. State of Haryana, (2015) 11 SCC 366 and State of Madhya Pradesh v. Kanha, (2019)3 SCC 605. Yet, in Jage Ram (supra) and Kanha (supra), it was observed that while grievous or life threatening injury was not necessary to maintain a conviction under Section 307, IPC, the intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.
20. On evaluating the evidence discussed herein above, along with the way in which the accused assaulted PW3, who was alone at the house of PW1 after trespassing on the house of PW1, the irresistible conclusion is that the accused herein committed the offence punishable under Section 452 of IPC. That apart, the accused committed offence punishable under Section 307 of IPC by using M.O1 knife with intention to do away PW3, though she survived. Therefore, conviction imposed by 2025:KER:45998 Crl.Appeal No.97/2014 15 the trial court for the said offences is only to be confirmed.
21. Coming to the sentence, the trial court imposed 2 years of simple imprisonment for the offence under Section 452 of the Indian Penal Code and to pay fine of Rs.5,000/-. Similarly, for the offence under Section 307 of IPC, the accused is sentenced to undergo rigorous imprisonment for a period of 4 years and to pay fine of Rs.10,000/-. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months. In consideration of the request made by the learned counsel for the accused, I am inclined to modify the sentence.
22. In the result, the appeal stands allowed in part by confirming the conviction and modifying the sentence as under:
The accused is sentenced to undergo rigorous imprisonment for a period of 3 years for the offence under Section 307 of IPC and to pay fine of Rs.10,000/- (Rupees Ten thousand only) and in default of payment of fine, the accused shall undergo rigorous imprisonment for a period of one month. The accused is sentenced to undergo rigorous imprisonment for a period of one year for the offence under Section 452 of IPC and to pay fine of Rs.5,000/- (Rupees Five thousand only) and in default of payment of 2025:KER:45998 Crl.Appeal No.97/2014 16 fine, he is sentenced to undergo rigorous imprisonment for a period of 15 days.
The substantive sentence shall run concurrently and the default sentence shall run separately.
Sd/-
A. BADHARUDEEN, JUDGE rtr/ 2025:KER:45998 Crl.Appeal No.97/2014 17 APPENDIX APPELLANT'S EXHIBITS ANNEXURE-A1: A TRUE COPY OF THE DISCHARGE CARD OF THE APPELLANT'S SISTER DT.01.09.1995.