Kerala High Court
Kochappan vs State Of Kerala on 18 September, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939
Crl.Rev.Pet.No. 2863 of 2004
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JUDGMENT IN CRA 305/2003 of IIIrd ADDITIONAL SESSIONS COURT
(ADHOC), THRISSUR DATED 18-09-2004
JUDGMENT IN SC 151/2000 of PRINCIPAL ASSISTANT SESSIONS COURT, THRISSUR
DATED 11-04-2003
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REVISION PETITIONER(S)/APELLANT/ACCUSED NO.1 :-
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KOCHAPPAN, S/O.INASU,
CHITTILAPPILLY HOUSE, KAINOOR DESOM,
KAINOOR VILLAGE, THRISSUR TALUK.
BY ADVS.SRI.P.VIJAYA BHANU
SRI.P.M.RAFIQ
RESPONDENT(S)/RESPONDENT/COMPLAINANT :-
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STATE OF KERALA, REP. BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.SREEJA.V.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
27-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.UBAID, J.
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Crl.R.P. No.2863 of 2004
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Dated this the 27th day of February 2018
ORDER
The revision petitioner herein is the 1 st accused in S.C. No.151/2000 of the Court of Session, Thrissur. He faced trial before the learned Principal Assistant Sessions Judge, Thrissur under Sections 341, 324 and 307 read with Section 34 IPC along with three others on the allegation that at about 7.30 p.m. on 2.1.1999, at Kainoor, in front of the C.I.T.U Office, he and the others assaulted the de facto complainant Rajan, after a wordy quarrel between them, and they inflicted serious injuries on the body of the said Rajan, including a penetrating injury on his abdomen causing protrusion of intestine, with a broken glass bottle. The police registered the crime on the F.I.Statement given by one Johny at 11.30 a.m. on 3.1.1999. After investigation, the police submitted final report in court. All the accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them under Sections 341, 324 and 307 IPC.
2. The prosecution examined eight witnesses and proved Exts.P1 to P21 documents in the trial court. The MO1 to MO7 Crl.R.P. No.2863 of 2004 -: 2 :- properties, including the broken glass bottle, with which the accused allegedly inflicted serious injuries, were also identified during trial. When examined under Section 313 Cr.P.C., all the accused denied the incriminating circumstances, and projected a defence that Rajan probably sustained injuries when he fell on a broken glass piece during a scuffle that ensued at the place of incident. In defence, the accused did not adduce any oral evidence, but, Exts.D1 to D3 were marked.
3. On an appreciation of the evidence, the trial court found the accused Nos.2 to 4 not guilty of any of the offences, and accordingly, they were acquitted, but the 1st accused was found guilty under Section 307 IPC. The court did not find him guilty under Sections 341 and 324 IPC. On conviction, the 1 st accused was sentenced to undergo rigorous imprisonment for three years under Section 307 IPC. Aggrieved by the judgment of conviction dated 11.4.2003, the 1 st accused approached the Court of Session, Thrissur with Crl.A. No.305/2003. In appeal, the learned IIIrd Additional Sessions Judge (Adhoc), Thrissur confirmed the conviction and sentence, and accordingly, dismissed the appeal. Now the accused is before this Court in Crl.R.P. No.2863 of 2004 -: 3 :- revision challenging the legality and propriety of the conviction and sentence.
4. On hearing both sides, and on a perusal of the materials, I find no reason or ground for interference in the findings, and the conviction made by the courts below concurrently. Of the eight witnesses examined in the trial court, PW1 is the de facto complainant, and PW2 is the first informant. PW3 to PW5 examined as independent witnesses turned hostile. However they stated about a wordy quarrel and a scuffle between the injured and the accused. They did not specifically implicate any of the accused.
5. PW2 proved the Ext.P1 F.I.Statement given by him. When he stated that he had not actually seen the incident, he was declared hostile by the prosecution, and he was cross examined by the learned Public Prosecutor with the permission of the court. Though he stated that he had not actually seen the incident, he gave a definite statement in his examination-in-chief itself that when he came to the scene of incident on hearing the cry and alarm made by Rajan, he saw Rajan with a bleeding injury on his abdomen with protrusion of intestine. When he Crl.R.P. No.2863 of 2004 -: 4 :- asked what happened to him, Rajan told him that he was stabbed on the abdomen by Kochappan (accused). This part of the statement given by the injured, and retold by the witness is res gestae evidence admissible under Section 6 of the Evidence Act. Such a statement was given by the injured immediately after the incident. It is pertinent to note that this part of the evidence of PW2 constituting res gestae elements under Section 6 of the Evidence Act stands not challenged in cross examination. Not even a single question was put by the defence on this aspect during cross examination. Though PW2 turned partly hostile, disowning his earlier statement that he had seen the incident, he is definite as regards the res gestae evidence given by him. To that extent, the evidence given by PW2 is well acceptable.
6. The main evidence is that of the injured examined as PW1. He has given definite evidence that when he heard the wordy quarrel between the CITU members and other Union workers, he intervened and separated them. Accordingly, they left the place. Within no time, the 1 st accused in this case stealthily attacked him, and beat on his head with a bottle. Due to the force of the blow, the bottle broke off, and with the broken Crl.R.P. No.2863 of 2004 -: 5 :- piece (neck portion), he stabbed on his abdomen causing a very serious injury, with protrusion of intestine. Hearing his cry and alarm, the others including PW2 came there, and he was immediately taken to the hospital. The medical documents show that just within half an hour, the injured was brought to the hospital, and was seen by the doctor. The evidence of PW1 is that the incident happened at about 7.30 p.m. It has come out in evidence that there was some street light, and it was not really dark at the time of the incident. Though extensively cross examined by the defence, nothing could be brought out to discredit his evidence except some contradictions, which are not very material. On material aspects, PW1 is definite and his evidence convincingly and satisfactorily proves beyond any reasonable doubt that the very serious injury sustained by him on the abdomen was in fact inflicted by the revision petitioner with a broken glass bottle. The said object was well identified by PW1 during trial. I find no reason to disbelieve PW1, or to reject his evidence. His versions narrating the incident are well corroborated to an extent by PW2, though he partly turned hostile. It is well settled that the whole evidence of a hostile Crl.R.P. No.2863 of 2004 -: 6 :- witness cannot be rejected, if part of it is otherwise acceptable and trustworthy. The defence did not specifically challenge that portion of the evidence of PW2 containing res gestae evidence.
7. The medical evidence given by PW7 read along with the Ext.P15 medical document would show that PW1 had sustained serious injuries in the alleged incident. On examination, the doctor noticed;
(1) an incised wound 12 x 4 cm along the right costal margin penetrating the abdomen, and injuring the liver and colon (2) Incised wound 3 x .5 cm superficial on the right side of abdomen (3) Incised wound 4 x .5 cm over the left fronto temporal area (4) Incised wound 1 x .5 cm on the left forehead (5) Incised wound 1 x .5 cm on the left frontal area (6) Incised wound 2 x .5 cm on mid frontal area (7) Lenior superficial lacerations on the left shoulder and both the scapular areas (8) Abrasions on the right big toe and right little toe The doctor explained that the injury Nos.1 to 6 can be caused with MO1. He also stated that the injury No.1 is serious in nature, and if prompt treatment were not given to block the severe bleeding from the said injury, it would have caused death. The defence suggested that the injuries could be caused in a fall on a broken glass piece. But the doctor explained that it is Crl.R.P. No.2863 of 2004 -: 7 :- possible only if the victim fell on the broken glass bottle and rolled over it more than once. I find that the defence suggestion is quite unacceptable. That part of the evidence given by the doctor, that the first injury is serious in nature, and it would cause death if not promptly attended to, stands not challenged in cross examination. Thus, I find that the necessary elements to constitute the offence under Section 307 IPC are well proved by the medical evidence. This is a case where the injured sustained a serious penetrating injury on his abdomen causing protrusion of intestine, and injuring the liver. No doubt, if a vital internal organ is injured, causing severe bleeding, and if prompt treatment is not given, such an injury would cause death.
8. On an examination of the entire evidence as discussed above, I find that the prosecution has well proved the offence punishable under Section 307 IPC. I find no reason for interference on the ground of any illegality or impropriety in the conviction made by the courts below.
9. Now the question of sentence. The sentence imposed by the trial court, and confirmed in appeal, is rigorous imprisonment for three years. The accused has no justification Crl.R.P. No.2863 of 2004 -: 8 :- for the severe injury, and he has no explanation how PW1 sustained the serious injury. It is not merely a penetrating injury. It is a 12 cms long injury causing protrusion of intestine, and injuring the liver. Luckily, he could be brought to the hospital within half an hour, and so, the doctors could save his life. On a consideration of the various aspects, including the severity of the injury, and the circumstances in which it was inflicted by the accused, I find that undue leniency cannot be shown to the accused. The incident happened in January, 1999. 19 years have elapsed. The accused was aged 41 years at the time of the incident. Now, he must be aged around 60 years. The injured and the accused belonging the same group of trade union activists, and it appears that something unpleasant in between them lead to the unfortunate incident. On a consideration of the various aspects, including the present age of the accused, I feel that rigorous imprisonment for two years will be the adequate sentence in this case.
In the result, the conviction against the revision petitioner under Section 307 IPC in S.C.No.151/2000 of the Sessions Court, Thrissur is confirmed, and the revision petition Crl.R.P. No.2863 of 2004 -: 9 :- is disposed of accordingly. However, the jail sentence imposed by the court below will stand reduced to rigorous imprisonment for two years. The revision petitioner will surrender before the trial court within three weeks from this date to serve out the sentence, on failure of which, steps shall be taken by the trial court to enforce the sentence.
Sd/-
P.UBAID JUDGE Jvt/28.2.2018