Kerala High Court
Johny Antony vs State Of Kerala on 16 February, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
THURSDAY, THE 16TH DAY OF FEBRUARY 2012/27TH MAGHA 1933
CRL.A.No. 1902 of 2003 ( )
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SC.34/2003 of ADDL.DISTRICT COURT,KOTTAYAM
APPELLANT/ACCUSED:
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JOHNY ANTONY,
S/O.ANTONY,
KIZHAKKEPUTHEN VEEIL,
PARATHIDESAM,
AMBOORI VILLAGE, VELKARADA TALUK,
THIRUVANANTHAPURAM DISTRICT.
BY ADVS.SRI.P.RAVINDRA BABU
SRI.SURIN GEORGE IPE
RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REP.BY C.I OF POLICE,
VAKATHANAM,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.SMT. JASMINE.V.H, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
16-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DG
N.K.BALAKRISHNAN, J.
---------------------------------------------------- Crl.A.No.1902 of 2003
---------------------------------------------------- Dated this the 16th day of February, 2012 Judgment The appellant was convicted by the learned Additional Sessions Judge, Kottayam for offence punishable under Section 397 IPC. Though he was charged for the offence under Section 307 IPC, he was found not guilty of that offence. The incident occurred on 17.1.2000 at about 10.45 PM. The accused/appellant was working as a rubber tapper in the estate owned by P.W.1. According to the accused, he had been working there as such for about 4 years prior to the incident. But P.W.1, the injured says that the accused was working there only for about four months. The case of the prosecution is that at about 10.45 PM on that day the accused trespassed into the house, breaking open the front door of the house. On hearing the slight noise, P.W.1's attention was drawn to that place. He saw through the window one person on the corridor. Through the rear door of the house P.W.1 went to the corridor to apprehend the trespasser. Though he caught hold of the accused, he wriggled out. The accused then inflicted Crl.A.1902/03 2 cut injuries on the body of P.W.1 with M.O.1 knife. Hearing this, P.W.2 (wife of P.W.1) switched on the light and came to that place. She was also attacked by the accused with M.O.1 in which she sustained injury, causing fracture of proximal phalanx of right index finger as evidenced by Ext.P5. The injuries sustained by P.W.1 are mentioned in Ext.P4, the discharge summary. Exts.P4 and P5 were issued from the Medical College Hospital, Kottayam. According to the prosecution, on hearing the noise, P.W.3, Sasi, a neighbour also reached there. P.Ws.1 and 2 were at first taken to a private hospital, namely, Kurichy Medical Centre. Since it was a medico-legal case, they were not admitted in that hospital; instead they were directed to go to the Medical College. Accordingly, P.Ws.1 and 2 were taken to the Medical College. They were admitted at 12.30 hours. The police went to the hospital and recorded the F.I.Statement of P.W.1. Investigation was conducted and charge sheet was laid against the accused.
2. The court below relied upon the evidence given by P.W.1 which was supported by P.Ws.2 and 3 to hold that the accused inflicted the injuries as evidenced by Exts.P4 and P5. There is also evidence to show that the incident took place at night. Of Crl.A.1902/03 3 course, it was contended by the defence that the incident took place in the evening.
3. According to the defence, a sum of Rs.500/- was due to him from P.W.1 and he had demanded that amount from P.W.1. He refused to pay the amount. Hence there was altercation between P.W.1 and the accused. It was further contended that P.W.1 had provoked the accused by stating that he (P.W.1) will not pay any amount to the accused. According to the learned counsel for the appellant, the incident actually took place in the evening and that was the reason why the records were not obtained by the investigating officer from the private hospital where P.Ws.1 and 2 were at first taken. But the evidence given by P.W.1 would show that they were not received/admitted in that hospital but were asked to go to the Government hospital/Medical College Hospital. Therefore the contention that the non-examination of the doctor attached to the private hospital is fatal to the prosecution cannot be accepted.
4. Though there was allegation to the effect that the appellant had broken open the outer door of the house, he was not charged for offence under Section 457 IPC. But the fact that Crl.A.1902/03 4 the incident did take place from the corridor of that house can be seen from the factors mentioned in the scene mahazar since the flower vase etc. were seen broken and fallen here and there. The evidence given by P.Ws.1 to 3 and Exts.P4 and P5 would show that the accused trespassed into the corridor of that house and he inflicted the injuries on P.Ws.1 and 2 with M.O.1 knife which was identified by P.Ws.1 and 2.
5. The next question is whether the prosecution could establish the offence under Section 397 IPC. The learned counsel for the appellant would submit that except the belief or surmise of P.W.1 that the accused had trespassed into that area with intention to commit robbery, there is absolutely no material to show that the accused trespassed into the house in order to commit robbery. There is also no acceptable material to hold that the injuries were caused to P.W.2 by the accused at the time of committing robbery. As such the conviction of the appellant for offence under Section 397 IPC cannot be sustained.
6. Though the appellant was charged under Section 307, he was found not guilty of that offence by the lower court. No appeal was filed challenging that verdict of acquittal. Crl.A.1902/03 5
7. In the light of the proved facts what is the offence which the appellant had committed is the next point to be considered. Though a charge under Section 457 also would have been sustained since no charge was framed against the accused, no conviction can be had under that provision. There is evidence to show that the accused inflicted injuries on P.W.1 with M.O.1 and other deadly weapons. Similarly, it was also proved that the accused caused grievous hurt to P.W.2 by stabbing with M.O.1 knife. Therefore, he had committed the offence under Section 324 IPC. Since the causing of hurt or grievous hurt are the ingredients to be proved to attract the offence under Section 397 IPC and since Section 326 or 324 IPC forms part of the offence under Section 397, without altering charge itself the appellant can be held guilty of the offence under Sections 324 and 326 IPC.
8. Since the accused trespassed into the corridor of that house and committed the crime as mentioned above, the prosecution contends that he should be given the maximum punishment. The learned counsel for the appellant submits that the appellant was a poor cooli and that the incident happened only because money due to him was not paid by P.W.1. Crl.A.1902/03 6
9. In the result, while setting aside the conviction and sentence passed against the appellant for the offence under Section 397 IPC, the appellant is found guilty of the offence under Sections 324 and 326 IPC and he is convicted thereunder. He is sentenced to undergo R.I. for two years and to pay Rs.5000/- for the offence punishable under Section 326 IPC and in default he will undergo R.I. for three months. He is also sentenced to undergo R.I. for one year for the offence under Section 324 IPC. The sentence will run concurrently. Set off is allowed under Section 428 of Cr.P.C.
N.K.BALAKRISHNAN, JUDGE.
srd Crl.A.1902/03 7 Crl.A.1902/03 8