Kerala High Court
Varghese @ Baby vs State Of Kerala on 27 July, 2011
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1353 of 2003()
1. VARGHESE @ BABY
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.JOHN VARGHESE
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :27/07/2011
O R D E R
V.K.MOHANAN,J
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Crl. Appeal No.1353 of 2003
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Dated this the 27th day of July, 2011
JUDGMENT
The sole accused in Crime No.920/2000 on Changanassery Police Station is the appellant, as he is aggrieved by the judgment dated 23.7.2003 of the court of Addl. District and Sessions Judge, Fast Track Court (Adhoc)-II, Kottayam in SC No.101/2002 by which the learned Sessions Judge convicted and sentenced the appellant u/s.308 and 323 of IPC.
2. The prosecution case is that, the accused with common intention to commit culpable homicide of PW2 not amounting to murder, inflicted cut injury on the left shoulder of PW2 by using of MO1 chopper and the accused also punched on the back of the chest of PW3, at Mangalassery Chira on the southern side of the house bearing Door No.1/320 of Paippadu Panchayath at Mangalassery Puthuval Bhagom at Poovam Kara in Changanassery Village at 4.00 p.m on 25.12.2000 and thereby the accused committed the offences punishable under Sections 323, 324 and 308 of IPC.
3. On the basis of the above allegation, crime No.920/2000 of Changanassery Police Station was registered for the said Crl. Appeal No.1353 of 2003 2 offences and on completing the investigation the Police preferred the report before the Judicial First Class Magistrate Court, Changanassery. Accordingly, cognizance was taken for the said offence and instituted CP No.49/2001 and the learned Magistrate committed the case to the Sessions Court as per order dated 27.3.2002 in the above committal proceedings. Thus, the case was received in the Sessions Court as SC No.101/2002 and made over the same to the Asst. Sessions Court, Kottayam and subsequently, the case was made over to the present trial court. Thus, on the appearance of the accused, after hearing him as well as the prosecution, a formal charge was framed for the offences punishable u/s.323, 324 and 308 of IPC, which was read over and explained to the accused to which he pleaded not guilty and denied the charge. Consequently, the prosecution adduced its evidence consists of the testimony of PWs. 1 to 8 and the documents, Exts.P1 to P8 were marked. MO1 material object had also identified and marked. The circumstances and evidence which are incriminating in nature and which emerged during the prosecution evidence, when put to the accused under Sn 313 of Cr.P.C, he denied the same and denied the prosecution case. The defence has also adduced Crl. Appeal No.1353 of 2003 3 evidence, consists of Ext.B1 to B3 the documentary evidence and the oral evidence of DWs.1 to 4. On conclusion of the trial, the trial court has found that the prosecution has succeeded in establishing its case beyond all reasonable doubt that accused has committed culpable homicide not amounting to murder, inflicted cut injury, which is likely to cause death of PW2 and the accused punched on the back of the chest of PW3 with his hand and thus, the accused has commit the offences punishable u/s. 323 and 308 of IPC and accordingly, he is convicted for the said offences. The trial judge has found that the accused is not guilty u/s.324 of IPC and accordingly he is acquitted u/s.235(1) of Cr.P.C for the offence u/s. 324 of IPC. On such conviction, the accused is sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.750/- u/s.323 of IPC and in default of fine, he is directed to undergo simple imprisonment for one month. He is also sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.5,000/- u/s.308 of IPC and in default of fine, he is directed to undergo simple imprisonment for a further period of 2 months. It is directed that the sentence shall run concurrently. It is also directed that on realization of the fine amount of Rs.750/- the same shall be paid to PW3 and in Crl. Appeal No.1353 of 2003 4 case the realization of Rs.5,000/- the same shall be paid to PW2. Set off was allowed u/s.428 of Cr.P.C. It is the above order of conviction and sentence, challenged in this appeal.
4. I have heard Sri.John Varghese, learned counsel appearing for the appellant and also the learned Public Prosecutor.
5. PW1 is the doctor who was working as Asst. Surgeon, Govt. Hospital at Changanassery at the relevant time and during his evidence he had deposed that he had examined PW2 in the hospital at about 5.10 p.m on 25.12.2000 and issued Ext.P1 wound certificate, noting injury found on the body of PW2. PWs. 2 and 3 are the injured persons in this case. According to the prosecution, on getting intimation from the hospital, PW7 reached in the hospital and recorded Ext.P2 FI Statement of PW2. PWs.4 and 5 were cited as eye witnesses to the incident but they turned hostile. Ext.P3 is the portion of contradict of 161 Statement of PW4 and Ext.P4 is that of PW5. PW6 is the attester on Ext.P5 scene mahazar. As I indicated earlier, when PW7 examined, he had deposed that he was working as Head Constable at Changanssery Police Station at the relevant time and on 26.12.2000 at about 9.00 a.m he reached in the Medical Crl. Appeal No.1353 of 2003 5 College Hospital at Kottayam on the basis of Ext.P7 intimation received in the Police Station from the Taluk Hospital and recorded Ext.P2 FI Statement given by PW2 from the Medical College Hospital and accordingly, he had registered Ext.P2 FIR in Crime No.920/2000 for the said offences. PW8 is an Asst. Sub Inspector of Police at Changanassery Police Station, who undertook the investigation and according to him, he arrested the accused at about 1.00 p.m on 26.12.2000 and he prepared Ext.P5 scene mahazar on his arrival at the place of occurrence at 2.00 p.m on 26.12.2000. PW8 has also deposed that, he had seized MO1 chopper which was found lying at the place of occurrence as per, Ext.P5 scene mahazar and subsequently, the same was produced in the court. He had also deposed that he questioned the witnesses and recorded their statement and also shown MO1 through the witnesses and the same was identified by the witnesses. According to PW8, he filed Ext.P8 report in the court showing the correct address of the accused. It was PW8 who produced the accused in the court on 26.12.2000. PW8 has further deposed that on completing the investigation, he had prepared the charge sheet and filed the same before the court.
Crl. Appeal No.1353 of 2003 6
6. In the present case, the defence has also adduced evidence. DW1 is the Doctor who was working as RMO of the District Hospital, Kottayam at the relevant time and he had deposed that he had medically examined Varghese, the accused on 27.12.2000 and thereafter he issued Ext.D3 wound certificate and noted the injuries found on the body of the accused. DW2 is another witness, examined by the defence, who was at that time, working as Head Constable, Changanassery Police Station and he had deposed that on 26.12.2000 he had recorded the statement given by DW3, the wife of the accused at Govt. Hospital, Changanassery at about 5.00 p.m on 26.12.2000. Ext.D2 is the copy of the statement of DW3 recorded by DW2. According to DW2 after recording Ext.B2 statement of DW3, he had registered FIR in Crime No.921/2000 for the offence u/s. 324, 323 and 294(b) r/w Sn.34 of IPC. Ext.D1 is the FIR. DW4 is the son of the uncle of the accused. These are the evidences and materials adduced by both prosecution as well as the defence to substantiate their respective allegations and pleadings. The court after an elaborate consideration of those evidence of materials, found that the prosecution has succeeded in establishing the offoences u/s.308 and 323 of IPC against the Crl. Appeal No.1353 of 2003 7 accused and also rejected the case of the defence.
7. Challenging the above findings and the conviction and sentence the appellant preferred the present appeal and in support of the above challenge, Sri.John Varghese, learned counsel appearing for the appellant vehemently submitted that the trial court is wrong in entering into a finding purely based upon the interested version of the injured witnesses as well as the official witnesses. According to the learned counsel, the prosecution has miserably failed to examine any independent witness to corroborate the evidence of the injured as well as the official witnesses and therefore, the prosecution case cannot be believed as such. It is also the strenuous submission of the learned counsel that going by the materials and evidence on record, it was incumbent us on the trial court to enter into a specific finding that the accused is entitled to get benefit of self defence. But according to the learned counsel, the Sessions Court has miserably failed to consider the plea of private defence taken by the accused and concluded that the prosecution has succeeded in establishing the case against the accused. It is also the submission of the learned counsel that the entire prosecution case itself is under a shadow of doubt since the prosecution has Crl. Appeal No.1353 of 2003 8 miserably failed to explain the injuries sustained by the accused especially in the light of the documentary evidence Ext.D3 wound certificate. Therefore, according to the learned counsel, the incident had taken place not as projected by the prosecution but in the manner as suggested by the defence and therefore, the prosecution has suppressed the material facts and hence the accused is entitled to get benefit of doubt. In the alternative the learned counsel further submitted that the sentence imposed against the accused/appellant is exorbitant and unreasonable and therefore, the same is liable to be interfered with. In support of the above submission, the learned counsel for the appellant heavily relied upon the decision of the Apex court in Rizan v. State of Chatisgarh reported in 2003 (1) KLT short note
72.
8. On the other hand, the learned Public Prosecutor submitted that the learned Sessions Judge is perfectly justified in his findings and convicting the accused for the offences u/s. 308 and 324 of IPC. The learned Public Prosecutor specifically pointed out that immediately after the incident, PW2 was admitted in the hospital as evident by Ext.P1 wound certificate and thereafter PW2 was referred to Medical College Hospital Crl. Appeal No.1353 of 2003 9 from where PW7 recorded the FI Statement of PW2, in pursuance to the intimation send from the Taluk Hospital and based upon Ext.P2 FIS, Ext.P6 FIR was registered. Thus, on registering the crime, PW8 undertook the investigation and arrested the accused on the date of the registration of the crime itself and recovered MO1 weapon as per Ext.P5 scene mahazar. According to the learned Public Prosecutor the only evidence of PW2 and 3 who are the injured, are sufficient to establish the case of the prosecution and therefore, even though there is no independent evidence it cannot be said that the trial court is incorrect in convicting the accused. The learned Public Prosecutor submitted that though the offence u/s.308 of IPC is revealed and found against the accused, the learned Sessions Judge has imposed only a sentence 3 years against him u/s.308 of IPC and therefore, no interference is warranted with respect to the sentence also.
9. I have carefully considered the arguments advanced by the learned counsel as well as the learned Public Prosecutor. I have perused the judgment of the trial court. I have scrutinized the deposition of the prosecution witnesses as well as the defence witnesses and the other materials including the Crl. Appeal No.1353 of 2003 10 documentary evidence.
10. In the light of the above mentioned evidence and materials and the findings of the trial court and particularly in the light of the rival pleadings, the point to be considered is whether the findings of the trial court as per the impugned judgment and the conviction and sentence imposed thereon are correct or not. The crux of the prosecution allegation is that when PWs.2 and 3 along with one Shylaja and her husband went to the house of accused and when PW2 asked the accused to making his boat available for enable them to cross the Mangalassery Canal so as to visit the father of PW2, who residing the opposite bank of the canal, the accused asked PW2 whether the boat belonged to the father of PW2, and thus PW2 and accused uttered abusive words each other and thereafter PWs.2 and 3 returned from the residential plot of the accused. It is the further case of the prosecution that when PWs.2 and 3 were returning and when they were going along with the side of chira near the house of one Josekutty, the accused came behind and after pushing aside PW3, he inflicted cut injury on the left shoulder of PW2 with MO1 chopper and when PW3 tried to restrain the accused, she was also attacked by beating on the Crl. Appeal No.1353 of 2003 11 back of his chest with hand. According to PW2 and 3, on hearing the hue and cry, the local people gathered and then the accused took his heal leaving the chopper then and there. The incident in which the accused to inflicted the injury on PW2 is clearly established through the deposition of PW2 and 3, who are the injured witnesses. Though PW2 and 3 were subjected to lengthy cross examination, nothing brought on record to discredit their version. The Apex court in a recent decision reported in 2011 (4) Supreme 640 has held than an injured witness comes with a built in guarantee of his presence at the scene of occurrence and he is unlikely to spare his actual assailants in order to falsely implicate another. In the present case, PW2 and 3 the injured when examined in the court without any variation from the 161 statement, deposed before the court strictly in terms of the prosecution case and therefore, I am of the view that the learned Sessions Judge is right in acting upon the evidence of PW2 and 3.
11. In this juncture, it is relevant to note that one of the main contentions raised by the counsel for the appellants is that the prosecution has not adduced any independent witness other than the testimony of PW2 and 3 who are the highly interested Crl. Appeal No.1353 of 2003 12 witnesses. I am unable to sustain the above contention, especially in the light of the decision of the Supreme Court which cited supra. Beside the above, it is relevant to note that the prosecution has cited two persons namely, PW4 and 5 to prove the incident as the ocular witnesses. But PW4 and 5 turned hostile. still then as rightly pointed out by the learned Public Prosecutor, PW4 has supported the prosecution case to certain extent. During the examination of PW4 she has stated;
'' PW2. . 25.12.2000 4 '.
It is also relevant to note that during her chief examination she had deposed as recorded in the 161 Statement which is stated from;
"PW2, 3 ..........................
.'' She had supported the substantial part of the act of the accused, Crl. Appeal No.1353 of 2003 13 in term what she had deposed before the Police. Thus, it can be seen that it is not a case, where the prosecution has not cited and examined any independent witness to prove its case, but PW4 and 5 turned hostile, still then PW4 has stated in support of the prosecution case to a certain extent.
12. As I indicated earlier, the other aspect of the prosecution case, including the investigation has proved without any room for any doubt. It is proved by the prosecution that immediately after the incident, PW2 firstly, removed to Changanssery Hospital and thereafter he was taken to Medical College Hospital, Kottayam, from where Ext.P2 FI Statement was recorded by PW7 and thereafter, he registered Ext.P6 FIR and thus, PW8 undertook the investigation and inspected the place of occurrence and prepared Ext.P5 scene mahazar and recovered MO1 chopper in the presence of PW6 attester. The evidence in support of the above part of investigation are also in tact.
13. When PW1 was examined, he had deposed in terms of the prosecution case and it is proved that on 25.12.2000 he had examined PW2, the injured and he had noted the wounds on the body of PW2. As per Ext.P1 wound certificate, PW2 had sustained lacerated wound on the left shoulder having a size 15 Crl. Appeal No.1353 of 2003 14 X 15 X 7 cms. When PW1 was shown MO1 chopper, he had deposed that the injury mentioned Ext.P1 can be caused with MO1 chopper. He had also deposed that the injuries noted in Ext.P1 was likely to cause the death of PW2. Thus, the evidence of PWs.2 and 3 the injured and supported by PW1 and Ext.P1 wound certificate, would show that PW2 sustained cut injury on his left shoulder and further the evidence of PW3 shows that he was beaten by the accused with hand. In the light of the above discussion and the materials referred to above, I am of the view that the trial court is perfectly justified and correct in holding that the prosecution has succeeded in establishing its case against the accused.
14. In this case, the defence has a contention to the effect that the accused has got a right to exercise his private defence, when he was attacked by the prosecution witness namely PW2 and 3 and party. According to the defence, as it is discernible from the suggestion, put to the prosecution witnesses, and from the version of DW3, when PW2 got in the boat of the accused, the accused asked him to get down from the boat, which infuriated PW2 and he attacked the accused and when the wife of the accused interfered so as to prevent to PW2 from attacking Crl. Appeal No.1353 of 2003 15 her husband, the accused, PW2 attacked the wife of the accused also. According to the defence in that attack PW2 sustained injuries with the weapon in the hands of PW3 and that incident had taken place at the bank of the river belonged to the accused and in that incident the wife of the accused has also sustained injuries. In order to substantiate the above version, defence has examined DWs.1 to 4 and also produced Ext.D1 to D3. DW1 is the doctor, who issued Ext.D3 after the examination of the accused. From Ext.D3 wound certificate, it appears that the accused sustained certain contusions. DW2 is the Police Constable attached to the Changanassery Police Station, who recorded Ext.D2 FI Statement of DW3, the wife of the accused on 26.12.2000 and recorded Ext.D1 FIR. DW3 is the wife of the accused, who deposed that her husband was attacked by PW2 and on the date of the incident itself the accused was arrested by the Police and subsequently, she was admitted in the hospital and the Police after recording her Ext.D2 FI Statement registered a crime.
15. Going by the defence version and the materials it appears that the place of occurrence is entirely different from the one described in Ext.P5 scene mahazar. The trial court has Crl. Appeal No.1353 of 2003 16 already rejected the above contention and the evidence of the defence. According to me, the evidence of DW3, the wife of the accused cannot be believed even for a moment as the same is not unworthy of credence. According to DW3, after the incident the Police came in their house and removed the accused. According to her, one Kunjachan informed the Police and thereafter Police came there. If that is true, the Police is expected to arrive there in search of PW2 for his arrest, since according to DW3, PW2 is the aggressor and offender. It is relevant to note that, even though DW3 claimed that she had sustained injury, she did not opt to go to the hospital on the date of the incident. It is also relevant to note that, she has also no claim that her husband has gone to the hospital till the arrival of the Police in their house. Mr.Kunjachan, mentioned by DW3 was not examined. It is also relevant to note that though the accused has claimed to have admitted and examined by DW1 even after two days from the date of the incident, the accused has not mentioned the name of the assailants to the Doctor and such name is not noted in Ext.D3 wound certificate. Even according to the accused or DW3 and DW4, they have no case that accused was unconscious or unable to speak about the incident. Therefore, I find no Crl. Appeal No.1353 of 2003 17 admissible and convincing reason for not mentioning the name of the assailant namely PW2, in Ext.D3, if the condition of the defence is true. The learned counsel for the appellant submitted that though the name of the assailants is not mentioned in Ext.D3, in D2 FI Statement of DW3, she had mentioned the name of PW2. According to me, the giving name of Ext.D2 is not sufficient to compensate the lacunae that occurred in Ext.D3 wound certificate, if the version of defence is true and correct. DW3 is a person who opted to get admitted in the hospital only on the next day of the alleged incident which means, even according to DW3, after the arrest of the accused on the date of the incident. As per the prosecution evidence the accused was arrested only on 26.12.2000 after the registration of Ext.P6 FIR on that too after recording Ext.P2 FI Statement of PW2 on 26.12.2000. Thus, it is crystal clear that DW3 got admitted on the next date of the incident that too after the arrest of the accused, so as to create defence. As I indicated earlier, according to the defence, the incident had taken place at Kadavu which belonged to the accused. To prove the incident as claimed by them, there is no independent witness. Whereas, as per the prosecution case, the place of occurrence is described in Crl. Appeal No.1353 of 2003 18 Ext.P5 scene mahazar and MO1 was recovered from that place of occurrence. The evidence of PW8, the investigating officer is substantiate the above fact and the said evidence of PW8 is corroborated by the evidence of PW4 an independent witness and Ext.P5 scene mahazar a contemporary document therefore, regarding the place of occurrence, there is the cogent and concrete evidence supported by independent evidence and contemporary documents evidence, whereas regarding the place of occurrence as claimed by the defence there is no credible evidence at all.
16. It is also relevant to note that, even according to the defence witness namely, DW3, the accused sustained injury at the hands of DW2 by using 'Mulavadi'. Ext.D3 wound certificate shows that the accused sustained only contusions. If that be so, I am unable to accept that the accused inflicted injury that a lacerated wound as noted in Ext.P1 against PW2 in exercise of his private defence. Since from the above facts and circumstance, it is unable to hold that a right of self defence is accord on the accused. According to the prosecution, the incident is occurred at place described in Ext.P5 scene mahazar and the same is proved, which is far away form the place of Crl. Appeal No.1353 of 2003 19 occurrence as claimed by the defence, if the defence want to establish that PW2 sustain injuries while exercising the private defence by the accused, the accused has to established that the he has no other option, but to inflict such injury, so as to save his life. Thus, it can be seen that, even going by the defence case, the alleged injury sustained by the accused not connected with the incident alleged by the prosecution and therefore, the same has no legal consequence. More over, even as per Ext.D3, there are only contusions which cannot be treated as even minor injuries and hence prosecution is not obliged to explain the same. That being the factual position on strict application of the dictum laid down by the Apex Court in the decision reported in (2003(1) KLT SN 72) Rizan v. State of Chatisgarh the same is against the defence. But in the present case, the facts and circumstances involved in this case, and evidence on record are not justifying the plea of private defence. Therefore, according to me, the trial court is fully justified and correct in rejecting the defence plea and holding that the prosecution has succeeded in establishing the offence against the accused u/s.308 and 323 of IPC. Therefore, the conviction recorded by the trial court against the accused is confirmed.
Crl. Appeal No.1353 of 2003 20
17. The learned counsel for the appellant submitted that the alleged incident had taken place 11 years back and thereafter parties are residing in a peaceful and cordial atmosphere and therefore, a lenient view may betaken in the matter of sentence. I find some substance in the above submission. But it is relevant to not that PW2 sustained injury on his shoulder by using MO1 weapon and PW3 has also sustained injury in an incident which taken place on 25.12.2000 and thereafter more than 10 years are over and according to me, it is not proper to send the accused jail at this stage especially, in the light of the submission of the learned counsel for the appellant that both parties are now residing in a peaceful and cordial atmosphere. In the light of the findings that the accused has committed the offences punishable u/s.308, 323 of IPC, by which PW2 sustained serious injury and PW3 sustained hurt and in view of the mitigating circumstances mentioned above, I am of the view that instead of inflicting sentence of imprisonment the sentence can be confined to fine only and while fixing the fine amount sufficient provisions can be made so as to compensate PWs.2 and 3. Having regard to the entire facts and circumstances involved in this case, I am of the view that the Crl. Appeal No.1353 of 2003 21 sentence of imprisonment imposed against the accused liable to be set aside and the accused can be sentenced to pay a fine of Rs.29,000 for the offence u/s.308 of IPC and a sum of Rs.1,000/- for the offence u/s.323 of IPC, which will be sufficient to meets the ends of justice.
In the result, this appeal is dismissed confirming the conviction recorded by the trial court against the accused u/s.308, 323 of IPC, but the sentence of imprisonment ordered against the accused u/s.308 and 323 are set aside and the accused is sentenced to pay a fine of Rs.29,000/- u/s.308 of IPC and in default he is directed to undergo simple imprisonment for a period of 1 = years. Similarly, u/s.323 of IPC, he is sentenced to pay fine of Rs.1,000/- in default, he is directed to undergo simple imprisonment for a period of 6 months. The fine amount as fixed above shall be paid within 6 weeks from today and if there is any failure on the part of the accused/appellant in depositing the above fine amount in the trial court within 6 weeks from today, the trial court is free to take coercive steps to secure the presence of the accused and to execute the sentence and for realization of the fine amount. On realization of the fine amount, the trial court is directed to pay a sum of Rs.29,000/- to Crl. Appeal No.1353 of 2003 22 PW2 and a sum of Rs.1,000/- to PW3 u/s.357(1)(b) of Cr.P.C.
Subject to the above modification with respect to the sentence, the appeal is dismissed.
V.K.MOHANAN, JUDGE.
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