Kerala High Court
C.P.Rajan vs State Of Kerala on 22 September, 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 22ND DAY OF SEPTEMBER 2020 / 31ST BHADRA, 1942
CRL.A.No.902 OF 2005
AGAINST THE ORDER/JUDGMENT IN SC NO.288/2004 DATED 25-04-2005 OF
THE ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM
APPELLANT/ACCUSED:
C.P.RAJAN
S/O LATE CHACKO, AGED 46, PANDOTH HOUSE, NEAR MISSION
SCHOOL, MEKKARA ROAD, NADAMA VILLAGE, NADAMA DESOM,
KANAYANNUR TALUK.
BY ADVS.
SRI.VARGHESE C.KURIAKOSE
SRI.PRAVEEN K. JOY
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY CIRCLE INSPECTOR OF POLICE,
TRIPUNITHURA, THROUGH PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
BY SRI.K.B.UDAYAKUMAR, SR.GP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.09.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.APPEAL NO.902 OF 2005 2
JUDGMENT
Dated this the 22nd day of September 2020 ...
The appellant is the accused in Sessions Case No.288 of 2004 on the file of the Additional Sessions Court (Adhoc-II), Ernakulam. The above case is charge sheeted against the appellant alleging offences punishable under Sections 341, 506(ii), 326 and 307 of the Indian Penal Code (IPC).
2. The prosecution case is that, the accused, on account of his previous enmity towards PW1 and with the sole intention to murdering him had wrongfully restrained him at Thripunithura-Mekkara public road near the Mission School on 14.5.2001 at 10.45 p.m. It is the further case of the prosecution that, the accused hit PW1 on his head and other body parts with an iron road stating that, he will do away him. It is alleged that, the injured sustained a grievous injury.
CRL.APPEAL NO.902 OF 2005 3
3. To substantiate the case, the prosecution examined PW1 to PW13. Exhibits P1 to P14 are the exhibits marked on the side of the prosecution. DW1 to DW3 are the witnesses examined on the side of the defence. MO1 to MO3 are the material objects. Exhibit C1 is marked as court exhibit.
4. After going through the evidences and documents, the trial court found that, the accused is not guilty under Sections 506(ii) and 307 IPC. The trial court found that, the accused is guilty under Sections 341 and 326 IPC. The accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.7,000/- under Section 326 IPC. In default of payment of fine, the accused is directed to undergo simple imprisonment for another three months. The accused is also directed to pay a fine of Rs.500/- under Section 341 IPC. In default of payment of fine, the accused is directed to undergo simple CRL.APPEAL NO.902 OF 2005 4 imprisonment for one month.
5. Heard the learned counsel for the appellant and the learned public prosecutor.
6. The learned counsel for appellant submitted that, the prosecution miserably failed to prove the case against the appellant. The counsel submitted that, even if the entire allegations are accepted, no offence under Section 326 IPC is made out. The counsel also submitted that, the evidences available in this case are not reliable. The counsel also submitted that, if this Court finds that, the appellant is guilty under Sections 341 and 326 IPC, the substantive sentence may be reduced to fine.
7. The learned Senior Public Prosecutor submitted that, the trial court considered all the aspects of the case and the conviction and sentence imposed by the trial court are perfectly justifiable in the facts and circumstances of this case. The Senior Public Prosecutor submitted that, the injured in this case sustained serious CRL.APPEAL NO.902 OF 2005 5 injury.
8. The point for consideration in this appeal is whether the conviction and sentence imposed by the trial court is sustainable ?
9. The trial court, after appreciating the oral and documentary evidences, found that, the oral evidence of the injured in this case can be accepted. The trial court found that, there is no reason to arrive at a finding that, what is stated by PW1 is not true. The trial court after going through the facts and circumstances of this case, found that, the prosecution has proved its case as to the cause of injuries sustained by PW1 beyond the shadow of reasonable doubt. The trial court also found that, in the light of the medical evidence and oral evidence available in this case, it is clear that, the accused inflicted grievous hurt to the injured. But the trial court found that, there is nothing to show that, the accused had intended to murder PW1 on the crucial day. The trial court found that, the CRL.APPEAL NO.902 OF 2005 6 prosecution is not able to establish the fact that, the accused had committed the offence under Section 307 IPC. The trial court found that, the accused cannot be convicted under Section 307 IPC in the light of the facts and circumstances of this case. The trial court also found that, there is absence of evidence in this case to invoke the offence under Section 506(ii) IPC. The discussion of the evidences and documents by the trial court is in paragraph 13 of the impugned judgment and the same is extracted hereunder:
"para.13: In the light of the above evidence rendered on the side of the prosecution, the question that poses for consideration is as to whether the prosecution version of the story is substantially established. I must advert again at this juncture that PW1 has given a narration in his evidence as to how the incident had happened and the nature of injuries sustained by him as a result of the overt act of the accused. PW1 was emphatic in stating a case that the accused had beaten him with M.O1 iron rod in an incessant manner during the late hours of 14.5.2001 at 10.45 P.M in the CRL.APPEAL NO.902 OF 2005 7 Thripunithura-Mekkara Public road so as to cause him fatal injuries. In any view of the matter, the medical evidence made available in this case through Exts.P7 and P3 would conclusively establish that PW1 had sustained the grievous injuries spoken to by him in his evidence. In other words, the case of PW1 as to the incident in question is corroborated through the medical evidence adduced by the prosecution. PW4, the independent witness cited by the prosecution has also supported the prosecution case regarding the incident involving the accused. It is also pertinent to note here that PW1 has stated a case that the accused had attacked him on the relevant day by accusing him of stamping on the gate existed in the residential compound of the accused. The learned counsel appearing for the accused in defending the case on his behalf has submitted that motive has been suggested in a flimsy manner and this has not been established by the prosecution. What is particularly urged by the defence counsel is that no evidence has been rendered on this point. There is also nothing in the evidence to show that any damage has been caused on the gate in question. According to the defence counsel, Ext.P4 scene CRL.APPEAL NO.902 OF 2005 8 mahazar made no mention as to a gate located in the residential property of the accused and the prosecution was not successful in proving the motive. The second limb of contention raised by the learned counsel is that PW4 who is stated to have seen the incident at close quarters with one another did not think it fit to come the rescue of PW1 in his predicament when he was lying on the ground and in the light of the circumstance that PW4 has known PW1, it could not have been possible for him in the normal run of things to do so and hence the tailor made version highlighted by PW4 cannot be believed. Thirdly, the evidence of PW3 and the testimony rendered by him as to fresh injuries found on the body of PW1 during the night time of 15.5.2001 at R.C.M.Hospital, Thripunithura is highlighted as the trump card to canvass a position that the case spoken to by PW1 is not true and the incident had not happened as alleged by him. It is true to say that PW3 had stated so in his evidence but the confusion if any created has been well rectified by the evidence of PWs 9 and 11, the medical officers attached to the Taluk Hospital, Thripunithura who had stated on the basis of Ext.P7 that PW1 CRL.APPEAL NO.902 OF 2005 9 was admitted in the Taluk Hospital, Thripunithura during the early morning hours of 15.5.2001 and he was discharged during the course of the day for better treatment at the R.C.M.Hospital, Thripunithura. The sequence of events and the circumstances would clearly show that PW1 was admitted in the Taluk Hospital, Thripunithura immediately after the incident and he was discharged on request and admitted in the R.C.M.Hospital at 8.15 P.M. on 15.5.2001. Ext.P3 medical certificate came into being when PW3, the Causality Medical Officer attached to the R.C.M.Hospital, Thripunithura had attended PW1 at that point of time. AS regards the first two contentions advanced by the counsel for the accused, motive is an irrelevant factor which is intertwined with the state of mind of the accused. Even other wise, when PW1 has a version that he was attacked by the accused with a specific accusation, it can be definitely understood that the motive factor was also explained by the prosecution in a satisfactory manner. Even on accepting the contention of the learned counsel for the accused that the evidence of PW4 is not liable to be believed, there is the impeccable evidence of PW1 in this case and having CRL.APPEAL NO.902 OF 2005 10 regard to the circumstances, I see no reason to arrive at a finding that what is stated by PW1 is not true. On a totality of the evidence and circumstances borne out in this case; I am constrained to take a view that the prosecution has proved its case as to the cause of injuries sustained by PW1 beyond the shadow of reasonable doubt. The next question to be considered is as to whether the offences angled against the accused is established by the prosecution. It should not be forgotten here that the accused had made an onslaught on PW1 in an abrupt manner with M.O1 iron rod and fatal injuries were sustained by him on the head as a result of the overt act of the accused. But on a close scrutiny of the prosecution evidence, I am of the view that, the prosecution allegation that the accused had intended to murder PW1 on the crucial day is not well established to bring the operation of Section 307 of the Indian Penal Code. It can be assumed that, if M.O1 is used as a weapon of offence to perpetuate a deliberate onslaught in a forcible manner in the vital part of the human body, it would tantamount to a position in causing the death of the victim but in order to invoke the CRL.APPEAL NO.902 OF 2005 11 operation of section 307 of the Indian Penal Code, it has to be established that there was a real intention on the side of the offender to do away with a person when a dangerous weapon was used. This being the position, I hold that the accused cannot be made liable for an offence under section 307 of the Indian Penal Code. There is also absence of evidence in this case to invoke section 506 (ii) of the Indian Penal Code but the prosecution has proved that the accused has committed offences under section 341 and 326 of the Indian Penal Code. The accused is therefore found not guilty of the offences u/ss. 506 (ii) and 307 of the Indian Penal Code and he is acquitted of the charges levelled against him under the said sections. But the accused is found guilty under sections 341 and 326 of the Indian Penal Code and he is convicted thereunder."
10. I see no reason in interfering with the above finding of the trial court. It is a well considered judgment in which the trial court found that the accused committed the offence under Sections 341 and 326 IPC. While considering CRL.APPEAL NO.902 OF 2005 12 the evidence available in this case, the trial court found that no offence under Sections 307 and 506(ii) is made out in this case. According to me, the trial court is perfectly justified in convicting the accused under sections 341 and 326 IPC. There is nothing to interfere with the conviction order passed by the trial court under sections 341 and 326 IPC.
11. Now the question to be decided is what is the sentence to be imposed on the accused. At the time of the alleged offence, the appellant was aged 42 years. A perusal of the 2nd page of the impugned judgment, it can be seen that the appellant underwent pre-trial detention for the period from 21.5.2001 to 28.5.2001. The incident in this case happened on 14.5.2001. Now 19 years have elapsed. When the accused was questioned before imposing sentence, he submitted that, he is supporting his mother and minor son. Considering the entire facts and circumstances of this case and also considering the fact that, the CRL.APPEAL NO.902 OF 2005 13 alleged incident happened in 2001, I think, it is not proper to send the accused again to jail in this case. The accused already underwent pre- trial detention for a period of one week. Therefore, the substantive sentence can be reduced. Moreover, the fine portion is to be increased so that the compensation can be paid to the injured in this case. Therefore, the above Criminal Appeal is allowed in part in the following manner:
i) The conviction imposed on the appellant under Sections 341 and 326 IPC is confirmed;
(ii) The sentence imposed under Section 326 IPC is set aside and the appellant is directed to undergo simple imprisonment for a period of one week and to pay a fine of Rs.15,000/- (Rupees Fifteen thousand only). If the fine amount is not paid, the appellant will undergo simple CRL.APPEAL NO.902 OF 2005 14 imprisonment for a period of three months;
(iii) The sentence imposed under Section 341 IPC is confirmed;
(iv) If the fine amount is recovered, an amount of Rs.15,000/- (Rupees Fifteen thousand only) shall be paid to PW1 under Section 357 (1)(b) Cr.P.C;
(v) Set off is allowed;
(vi) The appellant is granted one
month's time to pay the fine amount.
If the fine amount is not paid, the trial court will take steps in accordance to law.
Sd/-
P.V.KUNHIKRISHNAN
pkk JUDGE