Kerala High Court
Kunjumon @ Eleevchacko vs State Of Kerala on 29 January, 2025
Criminal Appeal No.410 of 2014
1
2025:KER:6735
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 29TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946
CRL.A NO. 410 OF 2014
AGAINST THE JUDGMENT DATED 27.03.2014 IN SC NO.48 OF
2013 ON THE FILE OF THE COURT OF SESSION, THODUPUZHA.
APPELLANTS:ACCUSED NOS.1 TO 3
1 KUNJUMON @ PHILIP CHACKO,
(WRONGLY SHOWN AS ELEEVCHACKO IN THE JUDGMENT)
AGED 64 YEARS, S/O.CHACKO OLIKKARA HOUSE,
SWAPNA JUNCTION BHAGAM, VELLARINKUNNEKARA,
KUMALY VILLAGE, IDUKKI DISTRICT.
2 GIGIMON JACOB PHILIP,
S/O.PHILIP CHACKO, AGED 43 YEARS,
OLIKKARA HOUSE, SWAPNA JUNCTION BHAGAM,
VELLARINKKUNNEKARA, KUMALY VILLAGE,
IDUKKI DISTRICT.
3 JOSHY @ JOSHY PHILIP,
AGED 42 YEARS, S/O.PHILIP CHACKO,
OLIKKARA HOUSE, SWAPNA JUNCTION BHAGAM,
VELLARINKUNNEKARA, KUMALY VILLAGE,
IDUKKI DISTRICT.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SRI.T.ANIL KUMAR
SRI.MANU TOM
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.THOMAS ABRAHAM NILACKAPPILLIL
SRI.M.VIVEK
Criminal Appeal No.410 of 2014
2
2025:KER:6735
RESPONDENT:COMPLAINANT.
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
BY ADV.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21.01.2025, THE COURT ON 29.01.2025 DELIVERED THE FOLLOWING:
Criminal Appeal No.410 of 2014
3
2025:KER:6735
C.S.SUDHA, J.
-------------------------------------------------------
Criminal Appeal No.410 of 2014
------------------------------------------------------
Dated this the 29th day of January 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellants who are accused nos. 1 to 3 in S.C.No.48/2013 on the file of the Court of Session, Thodupuzha challenge the conviction entered and sentence passed against them for the offences punishable under Sections 341, 323, 326 and 452 read with Section 34 IPC.
2. The prosecution case is that on 30/06/2012 at 04:30 p.m the accused persons in furtherance of their common intention criminally trespassed into the shop room of PW1 situated in Ward No.III, Kumily Grama Panchayat and abused him by calling obscene words. The first accused with a chopper tried to hack PW1 which was warded off by the latter. The second accused Criminal Appeal No.410 of 2014 4 2025:KER:6735 wrongfully restrained PW1 and hit him on his back causing pain. The third accused with a reaper beat PW1 on his head causing hurt as well as grievous hurt. The accused persons attacked PW1 with the knowledge that by their act even death could be caused. Hence, the accused persons as per the final report were alleged to have committed the offences punishable under Sections 452, 294(b), 341, 323, 326 and 308 read with Section 34 IPC.
3. Crime no.626/2012, Kumily Police Station, that is, Ext.P5 FIR was registered by PW8, Sub Inspector of Police, Kumily Police Station based on Ext.P1 FIS of PW1 which statement was recorded by PW7, Additional Sub Inspector, Kumily Police Station. PW8 conducted the investigation and on completion of the investigation submitted the final report alleging the commission of the offences punishable under the aforementioned Sections by the accused persons.
4. On appearance of the accused persons, the jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C., committed the Criminal Appeal No.410 of 2014 5 2025:KER:6735 case to the Court of Session, Thodupuzha. The case was taken on file as S.C.No.48/2013 and thereafter made over to the Additional Sessions Judge-III, Thodupuzha for trial and disposal. The trial court on 02/04/2013, framed a charge for the offences punishable under Sections 452, 294(b), 341, 323, 326 and 308 read with Section 34 IPC, which was read over and explained to the accused persons to which they pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW9 were examined and Exts.P1 to P14, X1 and M.O.1 to M.O.4 were got marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. The accused persons denied all those circumstances and maintained their innocence.
6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., they were asked to enter on their defence and adduce evidence in support thereof. No oral or Criminal Appeal No.410 of 2014 6 2025:KER:6735 documentary evidence was adduced by the accused persons.
7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found no evidence to find accused persons guilty of the offences punishable under Sections 308 & 294(b) IPC and hence they were acquitted of the said offences under Section 235(1) Cr.P.C. However, they have been found guilty of the offences punishable under Sections 452, 341, 323 and 326 read with Section 34 IPC. Accused persons have been sentenced to rigorous imprisonment for three years each and to a fine of ₹10,000/- each of the offence punishable under Section 326 read with Section 34 IPC and in default to rigorous imprisonment for three months each ; to simple imprisonment for two years each and to a fine of ₹5,000/- each and in default to simple imprisonment for two months each of the offence punishable under Section 452 IPC and simple imprisonment for one month each of the offences punishable under Sections 341 and 323 read with Section 34 IPC. The sentences have been directed to run concurrently. Out of the Criminal Appeal No.410 of 2014 7 2025:KER:6735 fine amount, if realized, an amount of ₹25,000/- has been directed to be given as compensation to PW1. Set off has also been allowed. Aggrieved, the accused persons 1 to 3 have come up in appeal.
8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused persons/appellants by the trial court are sustainable or not.
9. Heard both sides.
10. It was submitted by the learned counsel for the appellants/accused persons that the trial court grossly erred in convicting the accused persons in the light of the insufficient materials on record. The trial court committed a grave mistake in not trying the counter case along with the present case though a request to the said effect had been made on behalf of accused persons. Relying on the dictum in Aneesh P. v. State of Kerala, 2024 (7) KHC 64 it was submitted that irrespective of the nature of the offences committed the case and counter case must be tried simultaneously. This procedure is insisted on to prevent the danger Criminal Appeal No.410 of 2014 8 2025:KER:6735 of an accused being convicted before his whole case is before the Court; it prevents conflicting judgments being delivered upon similar facts and because in reality, the case and the counter case are different or conflicting versions of one incident for all intents and purposes. It was further pointed out that there was no recovery of the weapons alleged to have been used in the crime by the accused persons. In the statement to the doctor by PW1, he never mentioned the use of knife by the accused persons. There was only reference to a stone having been used for the attack. The case that the accused persons had used a knife comes up thereafter which is clearly an afterthought. The incident in the counter case in which case the first accused herein is the injured, is the true narration of the facts. PW1 fell down and sustained injuries when he tried to attack and assault the first accused. The present false crime has been registered with the assistance of the police. Per contra it was submitted by the learned Public Prosecutor that there are sufficient materials on record to find the accused persons guilty of the offences for which they have been charged. There is no infirmity in Criminal Appeal No.410 of 2014 9 2025:KER:6735 the findings of the trial court calling for an interference by this Court.
11. Admittedly, accused nos.2 and 3 are the sons of the first accused. According to PW1, the injured, he is conducting a provision store in Swapna junction at Vellaramkunnu. On 30/06/2012 at 04:30 p.m. while he was sitting in his shop, the accused persons came inside his shop and abused him by calling obscene words. The first accused with a chopper attempted to hack him at which time he moved back which prevented him from sustaining any injury. The second accused then caught hold of him and hit on his back. The third accused with a reaper beat him on his forehead which caused hurt and grievous hurt. PW1 also deposed that the accused persons attacked him by saying that nobody would question them even if they killed him. Had he not moved back when the first accused attempted to hack him with the chopper, he would have sustained injures which would have been fatal. Immediately after the incident he was taken to the hospital for treatment where he gave Ext.P1 FIS to the police. According to Criminal Appeal No.410 of 2014 10 2025:KER:6735 PW1, M.O.1 was the chopper used by the first accused and M.O.2 is the reaper used by the third accused. As a result of the attack by the accused persons he had sustained a fracture on his forehead. PW1 also deposed that the accused persons attacked him as they were under the belief that he had poisoned their duck.
11.1. PW2 the daughter-in-law of PW1 supports the testimony of her father-in-law. According to her on 30/06/2012 at about 04:30 p.m. when she went to the shop of PW1 to bring back her child, she saw the accused trespassing into the shop and abusing PW1. The first accused was armed with a chopper and the third accused was holding a reaper. The first accused waved the chopper at PW1 but as PW1 moved back, he did not sustain any injury. The second accused caught hold of PW1 and hit him on his back. The third accused beat on the forehead of PW1 with a reaper causing injury. PW1 fell down at which time she cried out aloud. Hearing her cries, her husband rushed to the spot and took PW1 to the hospital for treatment. PW2 also identified M.O.1 and M.O.2. PW2 also deposed that the accused attacked PW1 under the belief Criminal Appeal No.410 of 2014 11 2025:KER:6735 that the latter had poisoned and killed their duck.
11.2. PW3 an independent witness also supported the version of PW1 and PW2.
11.3. PW4 deposed that following injuries could be caused with M.O.2 reaper.
" 1) Sutured wound over forehead.
2) X-ray undisplaced hair line fracture of frontal bone."
11.4. PW9, Superintendent-in-charge, Periyar Hospital, Kumily deposed that CW5, Dr. K.M.Thomas, the owner of the Hospital is aged 94 years. He is familiar with the signature of Dr. K.M.Thomas, who had issued Ext.P14 wound certificate. Ext.X1 is the case sheet of PW1 who was brought to the hospital on 30/06/2012. As per the documents, he had sustained a lacerated wound over the forehead on the frontal bone. The patient was referred to a neuro surgeon. The alleged cause was stated to be assault with a stick.
12. According to the prosecution, A1 to A3 had surrendered before the police and then they produced M.O.1 chopper and M.O.2 reaper before the police. However, PW6, Criminal Appeal No.410 of 2014 12 2025:KER:6735 attestor to Ext.P4 seizure mahazar deposed that PW1 and one Sobin were present in the police station and that it was they who had produced the chopper and reaper before the police, at which time the accused persons were not present. He identified M.O.1 and M.O.2. which he had seen at the police station. The evidence regarding the seizure of M.O.1 and M.O.2 is certainly not satisfactory. But recovery of weapon(s) used in the commission of an offence is not a sine qua non to convict the accused [See Mritunjoy Biswas v. Pranab alias Kuti Biswas, AIR 2013 SC 3334 ; Sanjeev Kumar Gupta v. State of U.P., (2015)11 SCC 69 ; Yogesh Singh v. Mahabeer Singh, (2017)11 SCC 195 ; Rakesh v. State of U.P., (2021)7 SCC 188 ; State through the Inspector of Police v. Laly alias Manikandan, AIR 2022 SC 5034).
13. On going through the testimony of PW1 to PW3, I do not find any reasons to disbelieve their testimony as it has not been discredited in any way. It is true that in Ext.P14 wound certificate it is stated that PW1 was attacked with a stone and a Criminal Appeal No.410 of 2014 13 2025:KER:6735 wooden stick. This is of not much relevant because it is the duty of the doctor to treat the patient and not to find out about the assailants or regarding the weapons used.
14. As pointed out by the learned counsel for the appellants, on going through the file, I find that an application, that is, Crl.M.P.No.1856 of 2013 was filed on behalf of the accused persons. The said application is seen filed on 03/05/2013 when the trial was scheduled to commence on 07/05/2013. In the application it is stated that on the basis of the first information statement given by the first accused herein, police has registered a crime against PW1, that is, crime no.707/2012, Kumily police station, alleging the commission of the offences punishable under Section 429 and 324 IPC. Since both the cases arise from the same incident they are to be tried simultaneously by the same court. The final report in crime no.707/2012 has been filed before the jurisdictional magistrate, Peermedu. However, the case has not been committed and therefore the accused persons sought an adjournment of the trial of the case. The application is seen allowed by the trial court Criminal Appeal No.410 of 2014 14 2025:KER:6735 as per order dated 07/05/2013 on payment of costs. Costs was paid on 08/05/2013 and hence the application stood allowed. It is not clear from the records as to what happened thereafter. The Registry was directed to ascertain the status of the said crime from the jurisdictional magistrate. A copy of the judgment in C.C.No.1099/2014 based on the final report in Crime No.707/2012, Kumily police station, has been forwarded. On going through the said judgment dated 26/07/2018, I find that the jurisdictional magistrate has acquitted the accused therein, that is, PW1 herein under Section 248(1) Cr.P.C. of the offence punishable under Section 324 IPC. After allowing Crl.M.P.No.1856/2013, the trial court ought to have adjourned the trial in S.C.No.48/2013 and awaited the committal of C.C.No.1099/2014 under Section 323 Cr.P.C. However, the trial court is seen to have proceeded with the trial of the case and passed the impugned judgment on 27/03/2014. This is certainly an irregularity committed by the trial court. On going through the judgment in C.C.No.1099/2014, it is seen that the FIS in the said crime was given by A1 herein on 28/07/2012, Criminal Appeal No.410 of 2014 15 2025:KER:6735 which was nearly one month after the incident took place on 30/06/2012. No explanation for the delay was furnished and hence for the said reason and in the light of the other unsatisfactory evidence on record, the court acquitted the accused therein, mainly, PW1 herein. No materials have come on record as to whether any appeal has been preferred against the judgment in C.C.No.1099/2014. A1 herein has no such case also. It is no doubt true that when there is a case and a counter case, they will have to be decided simultaneously by the same Judge.
15. On going through the testimony of PW1 to PW3, I do not find any reasons to disbelieve them. Therefore, though an irregularity was committed by the trial court, I do not find any injustice caused. There is no infirmity or illegality in the findings of the trial court. Hence, I find no reasons for interference.
16. Now coming to the sentence to be imposed on the accused persons. The first accused was 62 years in the year 2012 when the incident occurred. He must now be around 75 years old. None of the accused persons have any criminal antecedents. The Criminal Appeal No.410 of 2014 16 2025:KER:6735 dispute seems to have arisen because the accused persons were under the impression that PW1 had poisoned their duck. In such circumstances, the interest of justice would be met, if the accused persons are sentenced to imprisonment for a day till the rising of the Court and to pay compensation of ₹15,000/- each to PW1 and in default to simple imprisonment for one year. The impugned judgment is modified to the said extent.
In the result, the appeal is partly allowed. Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ak