Kerala High Court
Senthil Kumar Alias Yasayya vs State Of Kerala on 19 May, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942
CRL.A.No.1309 OF 2008
AGAINST THE JUDGMENT IN SC 346/2006 DATED 27-06-2008 OF THE
ADDITIONAL SESSIONS JUDGE/SPECIAL COURT (NDPS ACT CASES),
THODUPUZHA
APPELLANT/ACCUSED:
SENTHIL KUMAR ALIAS YASAYYA
S/O AROGYANA, KANDATHIL HOUSE,
NIRAPPAL KARA BHAGAM, VALLIMALA KARA, ANAKKARA.
BY ADVS.
SRI.P.VIJAYA BHANU
SMT.P.MAYA
SRI.THOMAS J.ANAKKALLUNKAL
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SR. PUBLIC PROSECUTOR - SRI. B. JAYASURYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.05.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1309 OF 2008 2
JUDGMENT
Appellant is the accused in S.C. No.346/2006 on the file of the Additional Sessions Judge/Special Judge for NDPS cases, Thodupuza. The above case was charge sheeted by the Sub Inspector of Police, Vandanmedu police station against the appellant, alleging offence punishable under section 397 IPC.
2. Prosecution case is that, on 14.05.2004, at 10.45 am, the accused came to house No.3/327 of Kurisumala veedu, situated on the side of Vellimala-Rajakkad road in Anakkara village. Lekshmi, W/o.Kannayyan was engaged in the courtyard of the above house, washing her clothes. The accused pressed the neck of Lekshmi by an electric wire causing her falling on the ground and hit upon her face with a granite stone inflicting severe injuries. Hearing the screaming sound of Lekshmi, two school going children playing in the adjacent compound listened and found the accused. The accused told them that, Lakshmi was bitten by a snake and children were sent away to bring their parents. Thereafter the accused, after inflicting severe injuries on the face and neck of Lekshmi, snatched away her gold chain and disappeared. CRL.A.No.1309 OF 2008 3
3. To substantiate the prosecution case, PW1 to PW9 were examined. Exts.P1 to P8 documents were marked. MO1 and MO2 material objects were also marked. Ext.D1 was marked on the side of the defence.
4. After going through the evidence and documents, trial court convicted the accused under Section 397 IPC and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.15,000/- . In default of payment of fine, the court below directed the accused to undergo rigorous imprisonment for six months. Aggrieved by the conviction and sentence, the appellant preferred this appeal.
5. Heard the learned counsel for the appellant and the learned Public Prosecutor.
6. Learned counsel for the appellant submitted that, even if the entire allegations are accepted, no offence u/s.397 IPC is attracted. According to the learned counsel, evidence of the injured witness and the other witnesses are unbelievable and not reliable. The learned counsel also submitted that, the investigating officer in this case is not examined and hence the recovery of the weapon cannot be CRL.A.No.1309 OF 2008 4 accepted. In such circumstances, the offence under Section 397 IPC is not attracted, according to the learned counsel.
7. Learned Public Prosecutor submitted that, the trial court, after considering the entire evidence, convicted the accused under Section 397 IPC. There is nothing to be interfered with the judgment of the conviction and sentence passed by the trial court. The learned Public Prosecutor also submitted that, serious injuries were sustained to the injured in this case.
8. After hearing both sides and perusal of the records, I cannot accept the contentions raised by the learned counsel for the appellant. In this case, PW1 is the injured. She deposed before the trial court about the incident in detail. PW2 and PW3 are two independent witnesses who corroborated the evidence of PW1. PW2 and PW3 are the children who were playing near the place of occurrence. According to them, accused told them that, PW1 had a snake bite and he directed them to call their parents. From the facts in this case, it is clear that, the accused was trying to avoid the children from the place of occurrence.
CRL.A.No.1309 OF 2008 5
9. Ext.P5 is the wound certificate. A perusal of Ext.P5 would show that the victim sustained serious injuries. The injuries noted in Ext.P5 are extracted below:-
1. Contusion right maxillary region.
2. Lacerated wound 2 cm long muscle deep over the forehead.
3. Fracture involving mediel wall and floor of right orbit. Mild Brain edema.
4. Fracture of (Rt) nasal bone right ethmoid and maxillary hemorrhage.
The first version to the doctor who examined the injured immediately after the incident is extracted in Ext.P5 wound certificate. The version of the doctor in Ext.P5 is that ''alleged history by assault- attacked by a known person named 'Sendhil Kumar' inflicted with a stone''. The alleged occurrence happened on 14.05.2004 at 10.45 am. The first version to the doctor by the injured also corroborate the case of the prosecution.
10. Moreover, the evidence of PW1 and PW4 are also reliable and there is nothing to disbelieve the evidence adduced by them. The trial court, considered the evidence of PW1 to PW4 in detail. I do not think that there is anything to be interfered with the findings rendered by the trial court regarding the admissibility of the evidence of PW1 to PW4. CRL.A.No.1309 OF 2008 6 The attack on PW1 and sustaining grievous hurt to her are proved, based on the oral evidence of PW1 to PW4 and Ext.P5 wound certificate. It is also proved that, there is snatching of gold chain belongs to PW1 by the accused. This aspect is also proved by the oral evidence of the injured herself.
11. To attract the offence under Section 397 IPC, at the time of committing robbery or dacoity, the offender should use any deadly weapon or cause grievous hurt to any person or attempt to cause death or grievous hurt to any person. In this case, from the oral evidence of PW1 to PW4 and the medical evidence, it is clear that, the injured sustained grievous hurt and the accused committed robbery.
12. Learned counsel for the appellant vehemently argued that, the evidence adduced regarding the recovery of the weapon by the prosecution in this case is not admissible because, the investigating officer is not examined in this case. According to the learned counsel, the investigating officer recovered MO1, based on a statement made by the accused and when the investigating officer is not examined, the recovery of weapon is not proved. Hence, according to the learned counsel, the ingredients under section 397 IPC is not CRL.A.No.1309 OF 2008 7 made out. According to the learned counsel, to attract the offence under Section 397 IPC, deadly weapon is to be used by the accused. In this case, the weapon used is MO1-electric wire. MO1 is recovered based on a confession statement made by the accused. Since the investigating officer is not examined, the recovery aspect is not proved and hence one of the ingredients of Section 397 IPC, namely, the use of deadly weapon is lacking and hence Section 397 IPC is not made out, according to the learned counsel.
13. After analysing the entire evidence in this case, I cannot agree with the contention of the learned counsel for the appellant. It is true that, the investigating officer is not examined in this case. Therefore, recovery of MO1 may not be admissible, because the same is recovered based on a confession statement, alleged to be given by the accused to the investigating officer. But, when there is strong oral evidence of the injured and other witnesses, who even identified MO1, I cannot accept the contention of the learned counsel for the appellant that, the non-examination of the investigating officer is fatal in this case. Even if the recovery aspect in this case is excluded, there is strong oral evidence CRL.A.No.1309 OF 2008 8 and medical evidence to support the case of the prosecution. PW1 to PW4 are the witnesses cited by the prosecution to prove the incident. PW7 is the doctor through whom Ext.P5 wound certificate is proved. In the light of the strong oral evidence and medical evidence adduced, even if the recovery evidence adduced by the prosecution regarding the recovery of MO1 is neglected, prosecution has succeeded in proving the offence under Section 397 IPC. Therefore, I am of the view that, there is nothing to be interfered in the light of the strong oral evidence and medical evidence adduced by the prosecution in this case. Therefore, there is nothing to be interfered with the conviction and sentence imposed by the trial court under Section 397 IPC.
14. As far as the sentence imposed is concerned, for an offence punishable under Section 397 IPC, the minimum sentence that should be imposed is seven years. In this case, the Sessions Judge imposed only seven years of imprisonment. Therefore, I am not in a position to interfere with the sentence imposed by the trial court. Hence the conviction and sentence imposed on the appellant is confirmed.
CRL.A.No.1309 OF 2008 9
In the result, the Crl. Appeal is dismissed.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE ajt