Kerala High Court
Girish vs State Of Kerala on 30 September, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 30TH DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944
CRL.A NO. 1412 OF 2006
AGAINST THE JUDGMENT DATED 23.06.2006 IN SC.NO.867/2005 OF
III ADDITIONAL SESSIONS JUDGE (ADHOC), FAST TRACK COURT
NO.1, THRISSUR
APPELLANTS/ACCUSED 2 & 4:
1 GIRISH, AGED 26 YEARS
S/O.PRABHAKARAN, KANNAMPULLY HOUSE,
MANNAMANGALAM, VILLAGE, DESOM,
THRISSUR DISTRICT.
2 REJI, AGED 28 YEARS
S/O. KUTTAPPAN, MARAKKUNNIL HOUSE,
MANNAMANGALAM VILLAGE,
DESOM, THRISSUR DISTRICT.
BY ADVS.
SRI.C.A.CHACKO
SMT.C.M.CHARISMA
SMT.REHNA.P.G
SRI.N.A.SHAFEEK
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTING S.I. OF POLICE,
OLLUR POLICE STATION,
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SR.PP. SRI.VIPIN NARAYAN
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
16.09.2022, THE COURT ON 30.09.2022 DELIVERED THE
FOLLOWING:
Crl.Appeal No.1412 of 2006
2
C.S.SUDHA, J.
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Crl.Appeal No.1412 of 2006
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Dated this the 30th day of September, 2022
JUDGMENT
This appeal under Section 374(2) Cr.P.C has been filed by the 2nd and 4th accused in S.C.No.867/2005 on the file of the Sessions Court, Thrissur, challenging the conviction entered and sentence passed against them for the offences punishable under Sections 448 and 323 IPC.
2. The prosecution case is that accused, 5 in number due to their enmity towards CW6, the brother of PW2 and son of PW3, formed themselves into an unlawful assembly and in furtherance of their common intention of committing culpable homicide of PWs.2 and 3, on 25.09.2004, at 07.00 p.m., trespassed into the Varandha of their residential building bearing No.VII/683 of Puthoor Panchayath situated at Manthamangalam Desom in Manthamangalam Village, and then the 5th accused pulled PW3 and the 4th accused pushed him down. The 3rd accused kicked PW3 on his waist, back and chest. When PW2 tried to intervene and prevent the Crl.Appeal No.1412 of 2006 3 accused from assaulting PW3, his father, accused no.2 to 5, fisted PW2 on various parts of his body. The 1 st accused hit PW2 on his head with a piece of granite stone causing injuries. Hence the accused, as per the final report, are alleged to have committed the offences punishable under Sections 143, 147, 148, 448, 323, 324 and 308 r/w Section 149 IPC.
3. On the basis of Ext.P2 FIS of PW2, Ext.P6 FIR i.e., Crime No.523/2004 was registered by PW8, the then Head Constable of Ollur Police Station. PW9, the then Sub Inspector of Ollur Police Station is the Investigating Officer, who completed the investigation and submitted the charge sheet before the Court alleging the commission of the aforesaid offences.
4. Pursuant to the appearance of the accused before the court below, on 17.01.2006, a charge for the offences punishable under Sections 143, 147, 148, 448, 323, 324 and 308 r/w Section 149 IPC was framed, read over and explained to the accused to which they pleaded not guilty. The prosecution examined PWs.1 to 10 and got marked Exts.P1 to P8 and MO1 in support of the case. After closing the prosecution evidence, the accused were questioned under Section 313 (1) (b) Cr.P.C with regard to the incriminating circumstances appearing against them in the evidence of Crl.Appeal No.1412 of 2006 4 the prosecution. They denied those circumstances and maintained their innocence.
5. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C, the accused were asked to enter on their defence. No oral evidence was adduced by the accused.
6. After considering the oral and documentary evidence and after hearing both sides, the court below by the impugned judgment dated 23.06.2006 convicted accused no.2 and 4 to rigorous imprisonment for six months each and to pay a fine of `750/- each and in default of the payment of fine to undergo simple imprisonment for one month each for the offence punishable under Section 448 IPC. The 4 th accused has also been found guilty for the offence punishable under Section 323 IPC and hence, he has been convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.750/- and in default of payment of fine to undergo simple imprisonment for one month. The sentences imposed on the 4th accused has been directed to run concurrently. 75% of the fine amount, on realization was directed to be paid to PW3. Set off under Section 428 Cr.P.C has also been allowed. As the 1 st accused died during the pendency of the trial, the case against him stood abated. The Crl.Appeal No.1412 of 2006 5 remaining accused i.e., A3 and A5 were acquitted of all the offences. It is this judgment, that is assailed in the present appeal.
7. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against accused no.2 and 4, the appellants herein, by the court below are sustainable or not.
8. Heard Ms.C.M.Charisma, the learned counsel for the appellants and Shri.Vipin Narayan, the learned Senior Public Prosecutor.
9. It is pointed out by the learned counsel appearing for the appellants that the offences under Sections 448 and 323 IPC would also not been made out from the materials on record. There is certainly force in this argument advanced on behalf of the appellants. Section 323 IPC deals with punishment for voluntarily causing hurt. Section 321 says, whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said 'voluntarily to cause hurt'. Hurt defined in Section 319 IPC, says, whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. Therefore, the prosecution will have to prove that the act(s) of the 4 th accused caused either bodily pain, disease or infirmity to PW2 or PW3. On going through Crl.Appeal No.1412 of 2006 6 the oral testimony of PWs.2 and 3, they only have a case that the 4th accused had pushed PW3. They have no case that the overtact of the 4 th accused had caused bodily pain, disease or infirmity to PW3. On the other hand PW2 and PW3 deposed that the overtacts of A1, A3 and A5 had caused pain. However, the said accused have been acquitted by the court below and no appeal has been filed by the State against the said order of acquittal. That being the position, the ingredients of the offence punishable under Section 323 IPC have not been made out by the prosecution and hence the 4th accused cannot be found guilty for the said offence.
10. Now coming to the offence under Section 448 IPC. The entire prosecution story has not been believed by the trial court. The impugned judgment itself refers to the discrepancies in the testimony of the witnesses. There is no consistency also in the overtacts alleged against the accused persons. The role of A1, A3 and A5 was doubted and hence they were acquitted. It was pointed out on behalf of the appellants that one main reason for rejecting the prosecution case against A1, A3 and A5 is because their names were never mentioned by PW2 and PW3, the injured, to the doctor who had examined them soon after the incident. In Exts.P1 and P8 wound certificates, the alleged assault is stated to have Crl.Appeal No.1412 of 2006 7 taken place near Mannamangalam. Therefore referring to the same, the argument advanced is that this discrepancy in the prosecution case has to enure to the benefit of the appellants also as it did in the case of other accused.
11. As stated earlier, the prosecution case is that all the five accused had formed themselves into an unlawful assembly, trespassed into the varandha of the residential building of PW2 and PW3 and had attempted to commit culpable homicide of the witnesses. The major part of the said story has been disbelieved by the court below and the accused acquitted of all the major offences. Mention or non-mention of the names of the accused to the doctor or the failure of the doctor to record correctly the names of the accused persons or the place of occurrence is not relevant as the duty of the doctor is to examine and treat the patients brought before him. The omissions or mistakes in the wound certificate relating to the role of the accused or the place of occurrence cannot be made the sole ground to disbelieve or reject the entire prosecution case. However, in this case when the main prosecution case has been disbelieved and when the testimony of PW2 and PW3 are not free from discrepancies, it may not be safe to enter into an order of conviction on the basis of their sole Crl.Appeal No.1412 of 2006 8 testimony. That being the position, it may not be safe to convict A2 and A4 for the offence punishable under Section 448 IPC when the major part of the prosecution story has been disbelieved and rejected by the trial court. That being the position, the 4th accused is certainly entitled to the benefit of doubt as pointed out and submitted by the learned counsel for the appellants.
Hence the appeal is allowed and the appellants/ A2 and A4 are acquitted under Section 235(1) Cr.PC. Their bail bonds shall stand cancelled and they shall be set at liberty forthwith.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE AS