Kerala High Court
Chitradas vs State Of Kerala Represented By The on 2 June, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY, THE 18TH DAY OF AUGUST 2017/27TH SRAVANA, 1939
CRL.A.No. 883 of 2004 ( )
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SC 42/1999 of ADDL.DISTRICT AND SESSIONS JUDGE (ADHOC)-I,
KOLLAM DATED 02-06-2004
CP 14/1998 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAVUR
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APPELLANT(S)/ACCUSED :-
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CHITRADAS, S/O.KRISHNAN,
MELATHI VEEDU, OONNIMOODU WEST,
POOTHAKULAM CHERRY, PARAVUR,
KOLLAM DISTRICT.
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.VIPIN NARAYAN
SRI.V.C.SARATH
SRI.P.SREEKUMAR
RESPONDENT(S)/COMPLAINANT :-
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STATE OF KERALA REPRESENTED BY THE
CIRCLE INSPECTOR OF POLICE,
PARAVUR POLICE STATION, KOLLAM DISTRICT
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
18-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.UBAID, J.
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Crl.A. No.883 of 2004
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Dated this the 18th day of August 2017
J U D G M E N T
The appellant herein is the sole accused in S.C.No.42/ 1999 of the Court of Sessions, Kollam. He faced prosecution on the allegation that at about 11 a.m. on 20.11.1997, he trespassed into the tailoring shop of one Babu at Oonnilmoodu Junction [within the limits of the Paravoor (south)], being armed with 'bill hook', assaulted the said Babu and inflicted serious injuries on his body, in an attempt on his life, due to some other dispute between the parties regarding some property. The police registered the crime on the basis of the First Information Statement (FIS) given by one Stibu under Sections 450 and 307 IPC. Later, the statement in detail of the injured was recorded and the police proceeded for investigation. During investigation, the weapon of offence was also seized by the police at the instance of the accused under Section 27 of the Indian Evidence Act. After investigation, the police submitted final report in Court. On committal, the case came up in the Court of Sessions, from where, it was made over to the learned Crl.A. No.883 of 2004 -: 2 :- Additional Sessions Judge (Adhoc-I), Kollam for trial and disposal.
2. The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Sections 450 and 307 IPC. The prosecution examined seven witnesses, and proved Exts.P1 to P10 documents in the trial court. The person, who gave FIS could not be examined as he had been away, and his presence could not be procured by the police. However, the FIS given by him was proved by the Investigating Officer. The MO1 bill hook was also identified by the material witnesses as the weapon of offence.
3. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and projected a defence that the injured sustained injuries in a scuffle, when he trespassed into the property of the accused, being armed with scissors. The accused did not adduce any oral evidence in defence, but Ext.D1 remand report was marked on his side.
4. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for two years under Section 450 IPC, and to undergo another term of rigorous imprisonment for Crl.A. No.883 of 2004 -: 3 :- five years under Section 307 IPC, by judgment dated 2.6.2004. Aggrieved by the judgment of conviction, the accused has come up in appeal.
5. When the appeal came up for hearing, the learned counsel for the appellant submitted that there is no satisfactory evidence to prove the offences beyond reasonable doubt, that if the defence case is probable as regards the way in which the de facto complainant sustained injuries, and that there is nothing to constitute the offence punishable under Section 307 IPC in this case. The learned counsel submitted that if at all the evidence is acceptable, what is at the best proved is only the offence under Section 324 IPC, and a simple house trespass punishable under Section 451 IPC. It was also submitted that the FIS in this case is not proved accord to law.
6. Let me first examine whether the offence under Section 307 IPC is proved, or made out in this case. Ext.P3 is the wound certificate proved by PW5, who treated the injured at the hospital. The injuries noted in the wound certificate are :-
"(a) An incised looking wound elliptical in shape 8.2 x 1.2 x 5cms lateral to the left eye.
(b) An incised looking wound 4.5 x 1.2 x .5cms over the right thumb.
Crl.A. No.883 of 2004 -: 4 :-
(c) An incised looking wound 4 x .5 x .5cms at the base of the left thumb.
(d) An incised looking wound at the distal end of the left thumb."
As regards the nature of the injuries, the doctor stated that, had the first injury been deeper, it would cause death in the ordinary circumstances. The doctor has no case that the injuries as such are sufficient to cause death in the ordinary circumstances, and the doctor has also not stated that any of the injuries is fatal in nature, or that any of the injuries is grievous in nature. He practically admitted that the injuries are simple in nature.
7. For a conviction under Section 307 IPC, there must be the required elements. The Court must be satisfied that the injury or injuries sustained by the victim would cause death in the ordinary circumstances, or such injury will be sufficient in the ordinary circumstances to cause death. Intention on the part of the accused to cause such injuries either in an attempt to cause death, or with the knowledge that such injuries he inflicted will cause death, is also required for such a conviction. In this case, the prosecution could not bring out the necessary elements of the said offence from the evidence of the doctor. I find that medical evidence in this case will not prove the offence Crl.A. No.883 of 2004 -: 5 :- under Section 307 IPC, and the evidence of the victim also will not prove the essentials, that the accused actually inflicted the injuries on his body either with the intention to kill him or on an attempt on his life. Of course, the weapon of offence has been well identified by the material witnesses. It is the MO1 bill hook. Recovery of the weapon at the instance of the accused also stands proved under Section 27 of the Indian Evidence Act. What is at the best proved in this case, assuming that the ocular evidence is acceptable and believable, is infliction of injuries voluntarily with a deadly weapon. This will come only under Section 324 IPC. Thus, I find that the accused cannot be found guilty under Section 307 IPC, but instead, he will have to be found guilty under Section 324 IPC, provided the ocular evidence is acceptable and believable.
8. Of course, it is true that the person, who gave the FIS could not be examined as a witness. PW7 is the Circle Inspector, who investigated the case, and PW6 is the Sub Inspector, who registered the crime. While proving the Ext.P5 FIR, the Sub Inspector also proved the Ext.P4 FIS given by Stibu, on the basis of which, he registered the crime. Non examination of the first informant will assume importance only if the evidence given by Crl.A. No.883 of 2004 -: 6 :- the victim of offence, and the other eye witness is not fully acceptable to the Court. If their evidence is fool proof and blemishless, or if that evidence is sufficient to prove the incident alleged, it will be of little consequence that the first informant is not examined, and the FIS is not proved. The FIR forming the basis of the prosecution stands proved by the police officer, who registered it.
9. PW1 is the victim of offence and PW2 is an independent witness. The defence could not bring out anything in the cross examination of PW2 to show that he has any interest of any sort to support PW1 or to give evidence against the accused.
10. PWs.1 and 2 are definite and consistent regarding the way in which, or the manner in which, or the place at which, PW1 sustained the injuries noted by PW5 in the Ext.P3 wound certificate. Both the witnesses stated that while PW1 was engaged in his works at his tailoring shop, the accused came there, armed with a bill hook, assaulted him, and inflicted injuries on his body with the bill hook. Both the witnesses identified MO1 as the said bill hook. Both stated that the accused assaulted PW1 in connection with some property Crl.A. No.883 of 2004 -: 7 :- dispute. I find no reason to disbelieve these witnesses or to reject their evidence. The evidence given by the victim is well consistent with the contents of the FIR on all material particulars, and PW2 has well corroborated PW1 on all material particulars. PW7 has proved the recovery of the MO1 weapon. Ext.P1 is the recovery mahazar, and Ext.P1(a) was proved by him as the specific statement of the accused that led to the recovery under Section 27 of the Evidence Act.
11. There is nothing to show that there was any flow, or irregularity, or illegality in the investigation conducted by PW7. There is nothing to show that any sort of prejudice was caused to the accused by anything done, or omitted to be done by PW7 during investigation. I find that the case was properly investigated by PW7.
12. Now let me examine how the alleged house trespass is punishable in this case. When the finding as regards the main offence is that only an offence under Section 324 IPC is proved, the accused cannot be convicted under Section 450 IPC. It stands proved that the incident happened at the shop of PW1, and not outside the shop. Thus, an instance of house trespass is well proved. Now the question is whether it come under Section Crl.A. No.883 of 2004 -: 8 :- 451 IPC or under Section 452 IPC. What is punishable under Section 451 IPC is simple house trespass with intention to commit an offence punishable with imprisonment, whereas, what is punishable under Section 452 IPC is such an instance of house trespass with preparation to cause hurt. In this case, it stands well proved that the accused was armed with MO1 bill hook when he trespassed into the shop of the victim. This means that he was prepared to inflict injuries on the body of the victim. This is not a case where the accused took a weapon from the spot of incident and inflicted injuries. In such a situation, it may come only under Section 451 IPC. But here, I find that the house trespass in this case comes under Section 452 IPC.
13. As found in the foregoing paragraphs, the appellant is liable for conviction under Sections 452 and 324 IPC. The offence under Section 452 IPC is lesser to the offence punishable under Section 450 IPC, and the offence under Section 324 IPC is lesser to the offence punishable under Section 307 IPC.
14. Now the question of sentence. The alleged incident happened years back in 1997. Now we are in August, 2017. Twenty years have elapsed since the date of incident. The Crl.A. No.883 of 2004 -: 9 :- accused was aged 38 years when the police submitted the final report in 1999. He must be now around 56 years. Ext.P3 wound certificate would show that one of the injuries sustained by the victim had some serious dimensions, though it was not fatal or grievous in nature. The other injuries were quite simple. On a consideration of all aspects, including the long lapse of years, the age of the accused, and also the fact that there is no previous conviction to the credit of the accused, I feel that a term of simple imprisonment for three months and a fine sentence of `20,000/- will meet the ends of justice, and that will be the adequate sentence.
In the result, this appeal is allowed in part. The appellant is found not guilty of the offences under Sections 450 and 307 IPC. Accordingly, he is acquitted of those offences, and the sentence imposed by the court below under those sections will stand set aside. But, in appeal, he is found guilty of the lesser offences under Sections 452 and 324 IPC. The appellant (accused) is sentenced to undergo simple imprisonment for three months each under Sections 452 and 324 IPC, and he is also sentenced to pay a fine of `20,000/- under Section 324 IPC. The fine amount, if realised, will be paid to PW1 under Section Crl.A. No.883 of 2004 -: 10 :- 357(1)(b) Cr.P.C. In default of payment of fine, the accused will undergo rigorous imprisonment for six months. The appellant will get the benefit of set off as already ordered by the trial court. The two sentences under Sections 452 and 324 IPC will run concurrently.
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P.UBAID JUDGE //TRUE COPY// P.A. TO JUDGE Jvt/23.8.2017.