Kerala High Court
Narayanan vs State Of Kerala on 8 November, 2019
Equivalent citations: AIRONLINE 2019 KER 580
Author: Sunil Thomas
Bench: Sunil Thomas
Crl.Appeal No.2411/2006 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 8TH DAY OF NOVEMBER 2019 / 17TH KARTHIKA, 1941
CRL.A.No.2411 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 712/2005 DATED 07-12-2006 OF
ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM
AGAINST THE ORDER/JUDGMENT IN CP 46/2005 OF JUDL. MAGISTRATE OF
FIRST CLASS, KOTHAMANGALAM
APPELLANT/ACCUSED:
NARAYANAN,
S/O.AYYAPPAN,AGED 48 YEARS, THOTTAMKARAYIL HOUSE,90
CENT COLONY, PAINGOTTURKARA, KADAVUR VILLAGE.
BY ADVS.
SRI.C.A.CHACKO
SMT.C.M.CHARISMA
SRI.N.A.SHAFEEK
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTING S.I. OF POLICE, POTHANICAUD POLICE,
STATION, REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT
OF KERALA, ERNAKULAM.
R1 BY ADV. PUBLIC PROSECUTOR SRI.C.K.PRASAD
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-10-
2019, THE COURT ON 8/11/2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.2411/2006 .2.
JUDGMENT
The sole accused, who stands convicted for offence punishable under section 308 IPC by the Additional Sessions Judge (Ad-hoc II), Ernakulam in SC No.712/2005, is the appellant herein.
2. The crux of the prosecution case is that, the accused was maintaining an enimity towards the victim, who is PW1, on an allegation that he had spread rumors about the wife of the accused. In retaliation for that, on 12/3/2003 at about 3.30 p.m., while the victim was having tea in a tea shop run by PW2, accused, armed with a dangerous weapon attacked him with the intention of committing culpable homicide and caused bodily injury on his neck. The victim was rushed to the hospital where he underwent treatment for eight days. FIS was laid, pursuant to which crime was registered and after investigation, final report was laid.
3. Accused appeared and pleaded not guilty. Prosecution paraded PW 1 to PW9 and relied on Exts.P1 to P6 documents. MO1 was the material object. On the side of the accused, there was no oral evidence, but he relied on Exts.D1 to D3 portions of section 161 statements given by CW4 who was examined as PW5.
4. The court below, on an evaluation of the entire materials, found the accused guilty, convicted and sentenced him to undergo RI for 4 years for offence punishable under section 308 IPC. Aggrieved by the above conviction and sentence, accused has preferred this appeal.
5. Heard the learned counsel for the appellant in extenso and the Crl.Appeal No.2411/2006 3 learned Public Prosecutor.
6. Assailing the conviction, learned counsel for the appellant contended that prosecution mainly relied on the oral testimony of PW1, PW2 and PW5 to establish the allegation that the accused had committed offence. This was sought to be corroborated by the medical evidence of PW3. It was stated that PW2 did not see the incident completely. PW5 was an unreliable witness in the light of the contradictions that were established in the course of cross examination. PW1 was on enimical terms with the accused and hence, his evidence cannot be relied on much, it was contended. It was hence contended that the prosecution thoroughly failed to establish the allegation against the accused. It was further contended that even from the available materials, it could be seen that injury inflicted on the victim was very minor and it could not lead to an offence under section 308 IPC. At the most, it can only be related to an offence under section 324 IPC instead of 308 IPC. Learned counsel for the appellant placed reliance on the decision reported in Shibin and Another v. State of Kerala (2009 KHC 1180) to substantiate his contention.
7. Prosecution is essentially relying on the oral evidence of PW1, the victim, PW2, the owner of the tea shop and PW5, a person claimed to be an independent witness. PW1 gave evidence in accordance with the prosecution case. He was relied on by the Crl.Appeal No.2411/2006 4 prosecution to establish the motive for committing the offence. According to PW1, accused had maintained enimity towards him on a false belief that the victim had spread rumours about the wife of the accused. He had complained to the employer of the victim and requested them to terminate his service. On another occasion,he had threatened to cause fatal injuries. This was relied on heavily by the prosecution to establish that the accused was maintaining enimity towards the complainant.
8. Regarding the above aspect there is nothing doubtful in the manner in which evidence was let in by PW1. Motive to that extent seems to be established. PW1 in his evidence deposed that when he went to the tea shop, accused was seen sipping tea. On seeing the victim, he left the shop and thereafter, stealthily returned. Even though the accused came from the back side of the victim, he could see the movement of the accused. According to PW1, since the accused had threatened him, he was careful and saw the accused slashing the knife against him. He tried to ward off, but he injured the neck of the victim. Knife was thrown off. Thereafter, he left the spot. This version is corroborated by PW2, the tea shop owner. Several questions were put to him, suggesting that he was engaged in attending the customers and had not seen the incident. PW2 had specifically stated that he saw the accused, and the victim falling down from his chair. It may appear that he had not seen the actual Crl.Appeal No.2411/2006 5 incident of stabbing. However, the entire incident that preceded the incident and followed it and the subsequent overtacts are deposed in detail by PW2. He stated that he saw the accused leaving the shop room and later coming inside keeping his arm, close to the chest. Evidently, he was concealing the knife. He also saw the accused near the victim. Thereafter, he heard the victim crying and falling down from his chair. He also heard the sound of knife hitting against the fan. He also saw the accused rushing out of the shop room. He immediately rushed to the victim and with the assistance of another person tied his wound. Thereafter he was taken to the hospital. This version is corroborated by PW5 also. It is true that few contradictions are brought out in the course of evidence of PW5. However, regarding the substantial part of the incident, PW1 and PW2 have given consistent evidence. The above version of PW1 to PW2 gets its support from the version of PW3 , the doctor. He had seen the victim within a gap of 20 minutes after the incident. Ex.P2 is the wound certificate. It shows an injury to the extent of 4x ½ cm on the neck. In the wound certificate also it is mentioned that, it was inflicted by a known person.
9. The evidence of the above witnesses show that, regarding the identity of the accused there seems to be no doubt. Versions of PW1 and PW2 appear to be consistent and gets its due corroboration from the attendant circumstances.
Crl.Appeal No.2411/2006 6
10. Learned counsel for the accused though contended that knife was not sent for FSL examination to take blood particles and that blood stained shirt of the victim was not seized for comparison, I do not find any reason to doubt the prosecution only for that reason. It seems to be sufficiently established by other circumstances. I feel that the prosecution has succeeded in proving the allegation against the accused and to that extent, conviction arrived at by the court below is liable to be sustained.
11. Learned counsel for the appellant vehemently contended that even from the available materials, no serious offence has been made out. Relying on the decision in Shibin's case (cited supra), learned counsel contended that evidence only indicates offence under section 324IPC. It was also contended that even PW3 had stated that the injury was only minor and it will not fall within the category of grievous injury. Hence, by no stretch of imagination offence under section 308 IPC can be attracted, it was argued.
12. It seems that there is a definite version of PW1 that accused had threatened to kill him. The accused left the shop room and thereafter came to the tea shop with knife. Evidently subsequent entry to the shop was pre planned. The situs of the injury is the neck. It cannot be said that with MO-1 knife, injury resulting in offence under section 308 cannot be inflicted. No serious injury could be inflicted only because of the attack was resisted by the victim and thereafter Crl.Appeal No.2411/2006 7 the knife was thrown off. These facts clearly establish that the accused intended to cause culpable homicide. Having regard to these facts, I find that conviction under section 308 is unassailable.
13. Learned counsel for the appellant vehemently pleaded that accused was only 48 years at the time of the incident and the incident happened in his prime stage. The incident happened about 16 years back. He has no criminal antecedents. The weapon used was only a small knife. Having considered the above and analysing the mitigating circumstances, I feel that at this length of time and also in the absence of any criminal antecedents, very reasonable sentence of imprisonment will serve the interest of justice. Accordingly, I am inclined to interfere with the sentence and reduce it to RI for a period of four months.
14. In the result, the appeal is allowed in part. The conviction entered into by the court below for offence punishable under section 308 IPC is sustained. However, sentence is modified to RI for four months. Bail bond stands cancelled. The accused shall forthwith surrender before the trial court to undergo sentence. Set off will be allowed for the period during which the accused had undergone earlier imprisonment in this case.
Sd/-
dpk SUNIL THOMAS
JUDGE