Kerala High Court
Sreekumar vs State Of Kerala on 3 June, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.A.No.629 OF 2004 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942
CRL.A.No.629 OF 2004
AGAINST THE JUDGMENT IN SC 232/2003 DATED 31-03-2004 OF
ADDITIONAL SESSIONS COURT (ADHOC-I), KOTTAYAM
APPELLANT/ACCUSED:
SREEKUMAR
S/O.VASUDEVAN NAIR,
PADINJAREKEECHERIL HOUSE,
PALLIPPADY BHAGOM,
KANJIRAPPALLY.
BY ADVS.
SRI.SUNIL CYRIAC
SRI.R.SUDHEER
RESPONDENT/COMPLAINANT:
STATE OF KERALA
CIRCLE INSPECTOR OF POLICE, KANJIRAPPALLY,
(CRIME NO.2/2003 OF KANJIRAPPALLY POLICE STATION),
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY SR.PUBLIC PROSECUTOR SRI.SANTHOSH PETER
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
01-06-2020, THE COURT ON 01-06-2020 DELIVERED THE FOLLOWING:
CRL.A.No.629 OF 2004 2
JUDGMENT
Dated this the 1st day of June 2020 The above appeal is filed by the accused in S.C.No.232/2003 on the file of the Additional District and Sessions Judge (Adhoc-I), Kottayam. The Circle Inspector of Police, Kanjirappally Police Station chargesheeted the accused alleging the offence punishable under Sections 324, 326 and 307 IPC.
2. The prosecution case is that the accused Sreekumar had previous enmity towards CW2 Chandrababu. On 1.1.2003 at about 1 AM, the accused with the intention of murdering charge witness No.2, stabbed him with a dangerous knife over his lower lateral chest wall and on the outer aspect of his left mid forearm. Hence it is alleged that, the accused committed the offences alleged.
3. To substantiate the case the prosecution examined PW1 to PW12. Exts.P1 to P12 are marked on the side of the prosecution. Exts.D1 to D4 are the defence exhibits. Ext.C1 is the court exhibit. MO1 and MO2 are the material objects.
4. On going through the evidence and the documents, the trial court found that the accused committed the offence under Sections 324, 326 and 307 IPC. The accused is sentenced to CRL.A.No.629 OF 2004 3 undergo Rigorous Imprisonment for two years under Section 324 IPC. The accused is sentenced to undergo rigorous imprisonment for three years under Section 326 IPC. The accused is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.25,000/- under Section 307 IPC. In default of payment of fine, the accused is directed to undergo simple imprisonment for a further period of two years. If the fine is recovered, there is a direction to pay an amount of Rs.20,000/- to PW4. Set of under Section 428 Cr.P.C was also allowed. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.
5. Heard the learned counsel for the appellant and the learned Public Prosecutor.
6. The learned counsel for the appellant submitted that, here is a case where the motive is not proved. He also submitted that, even if the entire evidence is accepted, no offence under Section 307 IPC is made out. The counsel also submitted that the evidence of the prosecution witnesses are mutually contradictory and they can't be believed.
7. The learned Public Prosecutor submitted that the prosecution proved the case beyond reasonable doubt. The learned Public prosecutor submitted that, the injured in this CRL.A.No.629 OF 2004 4 case sustained very serious injury and the medical evidence is supported by the oral evidence. Therefore the learned Public Prosecutor supported the judgment passed by the lower court.
8. After hearing both side, the point to be decided in this case is whether PW4 sustained hurt and whether the accused voluntarily caused hurt and grievous hurt to him with dangerous weapons. It is also a point to be decided whether the trial court considered the evidence properly.
9. Altogether 12 witnesses were examined by the prosecution. PW1 is the doctor. PW2 is the Village Officer through whom the scene plan is marked. PW3 is the wife of PW4 and she gave Ext.P4 first information statement. PW4 is the injured in this case. PW5 is an eye witness to the incident. PW6 is examined by the prosecution to prove the recovery of the weapon. PW7 is examined to prove the motive of the accused to commit the offence. PW8 recorded the first information statement and PW11 registered the first information report. PW9 is the Assistant Sub Inspector who seized Ext.P6 complaint filed by PW7 before the police. PW10 and PW12 are the police officers who conducted investigation in this case.
10. PW4 is the injured in this case. He is a driver by CRL.A.No.629 OF 2004 5 profession. According to him, on 1.1.2003 at about 12.30 AM, he took his taxi Tata Sumo vehicle to the house of its owner and he was walking through Kanjurappally-Thampalakkadu Public road and reached the church area. At that time, he saw PW5 who was walking through the road in front of the teashop of one Mohanan. The accused was seen standing on the side of the teashop. On seeing PW5 Anilkumar, PW4 injured told him to remain there till he leaves to his home. PW5 told him to leave the place and said that, he will remain there and leave the place only after his departure. PW4 has further stated that, meanwhile the accused Sreekumar rushed towards him and caught hold of him by his hand and told him that he is accompanying him. But PW4 told him that, he need not accompany him and he can return alone. But the accused insisted that, he will leave the place only along with the injured. So, PW4 had shook off the hands of the accused and told him that, he has only one father and he will not change his words. By that time, PW5 who was standing there came very close to them and stood in between the injured and the accused. Meanwhile, the accused took a knife from his waist. When PW5 saw the knife, he told the accused to stab him and to spare the injured Babu. But suddenly, the accused rushed towards the CRL.A.No.629 OF 2004 6 injured through the left side of PW5 Anilkumar and with the knife stabbed him twice. Consequently, he had sustained a deep injury on the outer aspect of left mid forearm below the left shoulder and an injury on his left flank. After withdrawing the knife from the second injury, the accused again stabbed towards PW4. But PW4 caught hold of the knife with his right hand. Consequently, he had sustained a small injury between his right index finger and thumb. In order to prevent the accused from attacking him again with the knife, PW4 caught hold the hand of the accused along with the knife and at that time, the knife hit against the left forearm of the accused and caused a small injury. PWs. 4 and 5 screamed and on hearing their screams, some persons came rushing there and by that time, PW4 fell down and the accused ran away carrying the knife. PW4 has also stated that, six or seven days prior to the incident ie. on a Christmas day at about 9.30 pm. one Jayan and Jayesh had manhandled PW7 Satheesan. The accused was a friend of Jayan and Jayesh. PW4, who happened to witness this incident, asked them as to why they are quarrelling with each other and also separated them. He asked PW7 Satheesan to leave the place without making any problem and told him to file a complaint before the police, if he had any grievance. CRL.A.No.629 OF 2004 7 Accordingly PW7 Satheesan filed Ext.P6 complaint before the police. Jayan and Jayesh are close friends of the accused. Aggrieved by the complaint filed by PW7, against Jayan and Jayesh, it is the prosecution case that, the accused assaulted PW4.
11. The evidence of PW4 injured is corroborated by the evidence of PW5, who is an eye witness. A reading of the evidence of PW1, it is clear that the accused sustained very serious injuries. Ext.P1 wound certificate issued by PW1, noted the following injuries:
1) Incised would 6 cms x 3 cms. Over the lower lateral chest wall at the mid axillary line penetrating the chest wall at the 10th rib level left side.
2) Incised would 7 cms. X 1 cm cutting the skin on the outer aspect of left mid forearm."
12. The doctor also stated that, the injury could be caused with a weapon like MO1. The doctor deposed that, PW4 was admitted on 1.1.2003 and he continued treatment till 12.1.2003. Ext.P2 is the discharge certificate. The evidence of PW1 will show the seriousness of the injury. The relevant portion of the evidence of PW1 is extracted hereunder:
"The injured was under my treatment as impatient. He was admitted on 1.1.2003 as I.P No.07/2003 and continued the treatment till 12.01.2003 on which date he has discharged in a stable clinical stage. This is the discharge certificate which I have issued and it bears my signature and hospital seal. Marked as Ext.P2. The CRL.A.No.629 OF 2004 8 patient underwent a lapartomy surgery and the following internal injuries were noted corresponding to the first injury in the would certificate.
Fracture of the 9th rib left. Injury spleen. The tear on the left diaphram was repaired. Spleen resists certain bacterias. By the removal of spleen he has increased chance of overwhelming infection by the bacterias. The two bacterias are pneumococus and haemophilus. The infection can result even in the death of the person whose spleen has been removed."
13. From the above evidence, it is clear that, there was fracture to 9th rib. There was injury to spleen and the spleen was removed. The doctor also deposed that, by the removal of the spleen, PW4 has increased chance of overwhelming infection by the bacterias.
14. The evidence of PW4 injured is corroborated by the evidence of PW5 eye witness. The ocular evidence of PW4 and PW5 are in tune with the medical evidence adduced by PW1 doctor. Therefore from the ocular evidence and the medical evidence, it is clear that the accused inflicted injuries on PW4 with dangerous weapon.
15. The motive for the incident is also proved by the evidence of PW7 along with Ext.P6 complaint which is seized as per Ext.P7 mahazar. The learned counsel for the appellant submitted that the motive is not proved. According to the counsel, there is nothing in ExtP6 to connect the accused. Simply because, the accused is not named in Ext.P6, the oral CRL.A.No.629 OF 2004 9 evidence of PW7 cannot be rejected. PW7 categorically stated that PW4 advised him to make complaint before the police in connection with the incident happened on the earlier date. According to the prosecution, submitting a complaint against the friends of the accused before the police is the motive of the accused to commit this crime. This is proved with the oral evidence of PW7 and oral evidence of PW4 along with Ext.P6 complaint. Therefore, the motive in this case is also proved.
16. Then the question is, which are the offence committed by the accused. The learned counsel for the appellant submitted that, the incident happened in a sudden provocation and no offence under Section 307 IPC is made out. I cannot agree with the contention of the appellant. The motive in this case is proved. A reading of the evidence of PW4 and PW5, it is clear that the assault of PW4 by the accused is not occurred due to any sudden provocation. The sudden provocation is ruled out with the evidence of PW4, PW5 and PW7. The accused inflicted hurt and grievous hurt to PW4. Therefore, the offences under Sections 324 and 326 IPC are made out in this case. Similarly, from the facts and circumstances of this case, I think the offence under Section 307 IPC is also made out. The accused is using a knife which is CRL.A.No.629 OF 2004 10 a dangerous weapon. The accused inflicted injury on the injured on the vital parts of his body. The prior enmity of the accused towards PW4 is also proved. In such circumstances, it can be safely concluded that the accused intention is to commit murder of PW4. Therefore the conviction of the appellant/accused under Sections 324, 326 and 307 IPC is to be confirmed and accordingly, the same is confirmed.
17. Then the question is regarding the sentence. The learned counsel for the appellant submitted that the petitioner now married and his wife is now aged 34 years. He has got a girl child aged nine years. According to the counsel, the parents of the accused are aged 77 and 73 years. The accused submitted that the parents, wife and child of the accused are relying the accused for their livelihood. He also submitted that, the incident happened about 17 years back. He submitted that, the accused and PW4 are neighbours and they are now in good terms. It is submitted that, PW4 is even ready for a settlement. Therefore, the learned counsel for the appellant pleaded mercy in sentence. The trial court awarded a sentence of two years rigorous imprisonment under Section 324 IPC. The accused is also directed to undergo rigorous imprisonment for three years under Section 326 IPC. He is also sentenced to CRL.A.No.629 OF 2004 11 undergo rigorous imprisonment five years and to pay a fine of Rs.25,000/- under Section 307 IPC. Considering the facts and circumstances of this case, the sentence imposed under Section 324 IPC can be reduced to six months and the three years imprisonment imposed under Section 326 IPC can be reduced to one year. Similarly, the five years imprisonment imposed under Section 307 IPC can be reduced to two years after enhancing the fine amount.
In the result, the Criminal Appeal is allowed in part.
i) The conviction of the appellant under Sections 324, 326 and 307 IPC as per the judgment dated 31.3.2004 in S.C.No.232/2003 on the file of the Additional District and Sessions Judge, (Adhoc-I), Kottayam is confirmed.
ii) The sentence imposed on the accused under Section 324 IPC by the trial court is reduced to six months instead of two years.
iii)The sentence imposed on the accused under Section 326 IPC is reduced to one year instead of three years ordered by the trial court.
iv) The sentence imposed under Section 307 IPC by the lower court is modified and reduced to two years CRL.A.No.629 OF 2004 12 and to pay a fine of Rs.1,00,000/- (Rupees one lakh only). If the fine amount is not paid, the accused shall undergo simple imprisonment for three years.
v) If the fine amount is realised from the appellant, an amount of Rs.75,000/- (Rupees seventy five thousand only) will be given to PW4 as compensation under Section 357(1) Cr.P.C.
vi) The sentence shall run concurrently.
vii) Set off under Section 428 Cr.P.C is allowed.
viii) Amount if any deposited by the appellant will be adjusted towards the fine ordered.
Sd/-
P.V.KUNHIKRISHNAN JUDGE ab