Kerala High Court
Ravi vs State Of Kerala on 11 July, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
WEDNESDAY, THE 11TH DAY OF JULY 2012/20TH ASHADHA 1934
CRL.A.No. 94 of 2012 (B)
------------------------
[AGAINST THE ORDER DTD.15.9.2011 IN S.C.NO.17/2011 of ADDL. SESSIONS
COURT (ADHOC)-I, KALPETTA]
APPELLANT(S):
------------
RAVI, S/O.DORAISWAMI, C.NO.9894,
CENTRAL PRISON, KANNUR.
BY ADV. SMT M.R.JAYALATHA (STATE BRIEF)
RESPONDENT(S):
--------------
STATE OF KERALA
BY PUBLIC PROSECUTOR SRI.P.M.SANEER.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-07-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
----------------------------------------
Crl.A.No. 94 of 2012
----------------------------------------
Dated this the 11th day of July, 2012
J U D G M E N T
The appellant, who is now undergoing imprisonment for the offence under Section 326 of I.P.C., as per judgment dated 15.9.2011 in S.C.No.17 of 2011 of the court of Additional Sessions Judge (ADHOC)-I, Kalpetta and who faced the prosecution for the offences under Sections 326 and 308, challenging his conviction and sentence imposed by the above judgment, preferred the above appeal.
2. The case of the prosecution is that the accused at about 5.30 a.m. on 7.10.2010 attempted to commit murder of his own wife from Harison Malayalam Plantation Estate situated at Padavettikunnu and in the course of the incident, he inflicted blows with a chopper and thereby caused grievous hurt on PW1, who sustained fatal injuries on the vital parts of her body and she apprehended death. On the basis of the said allegation, crime No.278 of 2010 was registered in the Meppadi Police Station for the offences punishable under Sections Crl.A.No.94 of 2012 :-2-:
326 and 308 of the I.P.C. On completing the investigation, charge was laid before the Chief Judicial Magistrate Court, Kalpetta from where the case was committed by order dated 5.1.2011 in C.P.No.40 of 2010. When the accused was produced, after hearing the learned Public Prosecutor and the counsel for the accused, a formal charge was framed against the accused for the offences punishable under Sections 326 and 308 of I.P.C. which when read over and explained to the accused, he denied the same and pleaded not guilty, consequently, the prosecution adduced its evidence by examining Pws.1 to 12 and producing Exts.P1 to P12 documents. Mos.1 to 4 are also identified and marked as material objects. Exts.D1 and D2 were marked as defence exhibits. Finally, the learned Judge has found that there is no evidence against the accused to hold that he had committed the offence punishable under Section 308 of I.P.C., but held that the available evidence including Ext.P12 wound certificate disclosed that the accused has caused fracture to mandibles of the victim and Crl.A.No.94 of 2012 :-3-:
therefore, the offence under Section 326 of I.P.C. is proved against him and accordingly, he is found guilty for the said offence and convicted him for the offence under Section 326 of I.P.C. whereas he is acquitted for the offence under Section 308 of I.P.C. On such conviction, the accused is sentenced to suffer simple imprisonment for five years and to pay fine of `15,000/-, in default, he is directed to suffer simple imprisonment for another one year for the offence under Section 326 of I.P.C. Set off is allowed and it is also ordered that in case the fine is paid or realised, the same shall be given to the injured as compensation under Section 357(1) of the Cr.P.C. It is the above conviction, sentence and direction are under challenge in this appeal.
3. As the appellant is undergoing imprisonment in pursuance of the above judgment, he preferred the above appeal from the jail which when received, as ordered by this Court, Advocate Smt.M.R.Jayalatha is appointed as State Brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard Advocate Smt.M.R.Jayalatha, Crl.A.No.94 of 2012 :-4-:
learned counsel for the appellant and Sri.P.M.Saneer, learned Public Prosecutor for the State.
4. Though the prosecution has examined several witnesses to buttress the allegation against the accused, they mainly depend upon the evidence of PW1, the injured as there is no other occurrence witness to the incident. When PW1 was examined, she has stated that doubting her chastity, the accused made several attempts to attack her and there were mediations and they were directed to live peacefully. According to PW1, on the date of the incident, she along with her children and the accused were residing in a line building belonging to Harrison Malayalam Plantation Estate and on the early morning, at about 5.30 a.m. she was taken by the accused to the place of the incident and the accused had a cigarette lighter with torch in his hand at that time. According to PW1, while they were proceeding to the place of occurrence, the accused was seen searching something and she had raised objection stating that she has to attend the estate duty Crl.A.No.94 of 2012 :-5-:
and then, the accused directed her to bow down and she was not prepared for the same, then the accused picked up a chopper and inflicted two blows on her of which one blow fell over the left side of her cheek along the shoulder and the other blow on the the scalp area. According to PW1, she sustained grievous injuries and she was soaked in blood. According to PW1, the accused disappeared when she directed him to go and collect her cloths so as to go to the hospital. It is the further case of PW1 that immediately after the incident, she raised hue and cry and went to the nearby house of one Benny and wife of Benny tied a bath towel around her wound and according to PW1, she had explained the incident to them when they enquired about it. According to PW1, as directed by the said Benny, one Unni informed the matter to the sister of PW1 and thus PW1's sister, her husband and another witness came to the house of the said Benny and they removed PW1 initially to the Taluk Hospital, Vythiri and subsequently, from there to Medical College Hospital, Kozhikode. Crl.A.No.94 of 2012
:-6-:
According to PW1, she had undergone treatment in the Medical College Hospital for 15 days as an inpatient. When PW1 was examined, she has identified MO1 chopper and MO2 the cigarette lighter.
5. PW2 is the sister of the victim PW1. PW2 is not an eye witness. According to PW2, in pursuance of the information received, herself and her husband came to the house of Benny and at that time, PW1 told her about the entire incident. She had also stated that she went along with PW1 when PW1 was taken to the hospital. According to PW2, while PW1 was admitted as an inpatient in the Medical College Hospital and undergoing treatment, the Police attached to Meppadi Police Station came to the hospital and as PW1 was not in a position to speak, she gave statement to the Police, narrating the entire incident as gathered by her from PW1. Ext.P1 is the F.I. Statement so given. During the examination of PW2, she has stated that when the victim was taken to the hospital, her husband and Crl.A.No.94 of 2012 :-7-:
driver stopped the jeep near Meppadi Police Station and informed about the incident. PW2 has also stated that though the victim was firstly taken to Vythiri hospital, immediately she is taken to the Medical College Hospital, Kozhikode due to the seriousness of the injury sustained by PW1. PW3 is the husband of PW2 and he had also deposed in terms of the deposition of PW2/his wife since PW3 has also no direct knowledge regarding the incident and he came to know only when himself and his wife came to the spot and as told to them by PW1. PW4 is Benny in whose house PW1 reached immediately after the incident. When PW4 was examined, he had deposed that he did not see the incident, but according to him, at about
6.45 a.m., the injured came to his house with severe injuries and when he questioned PW1 regarding the incident and injury, he was told by PW1 that the accused inflicted blows on her and caused injuries. PW4 has also stated that the children of PW1 and the accused came to his house before PW1 was taken to the hospital. PW5 is the wife of PW4. Crl.A.No.94 of 2012
:-8-:
She has also deposed in terms of the deposition of PW4. According to PW5, she had tied a bath towel around the wounds of PW1. PW6 is the neighbour of the accused as well as the victim. According to him, on the date of the incident when he heard the hue and cry and commotion, he went to the house of PW4 Benny and he had seen PW1 lying in a pool of blood and he had further found that PW5 was tying a bath towel on the injuries of PW1. PW6 also accompanied Pws.1 to 3 to take PW1 to the hospital. Pws.7 and 8 are the daughters of PW1 and when they were examined, they have stated that they were residing along with PW1 and the accused who are their parents.
According to them, on the previous night after taking dinner, they slept in the house and when they had awaken, their parents are not in their house and on hearing some commotion near from the house of PW4, they rushed to there and they saw their mother lying in a pool of blood with severe injures. According to the children, their father and mother are not in good relationship and the accused used to take Crl.A.No.94 of 2012 :-9-:
quarrel with the mother doubting about the chastity of PW1.
6. PW9 is the then Police Constable attached to Meppadi Police Station who is a witness to Ext.P2 mahazar for the seizure of Mos.3 and 4 and the lunky worn by the accused at the time of the incident. PW10, the then Head Constable of the Meppadi Police Station and according to him, on receiving the intimation from the Medical College Hospital, Kozhikode, he visited PW1 and as she was not able to speak, he recorded Ext.P1 F.I.statement given by PW2.
7. PW11 the then S.I. Of Police, Meppadi Police Station, who undertook the investigation. When PW11 was examined, he had deposed that on receiving Ext.P1 F.I.statement recorded by PW10, he had registered Ext.P3 F.I.R. During the course of the investigation, the accused was arrested on 9.10.2010 and to prove the arrest, Ext.P4 arrest memo is proved through PW11. According to PW11, when the accused was arrested, he had given the confession statement and the same is marked as Ext.P5. According to PW11, in pursuance of Crl.A.No.94 of 2012 :-10-:
Ext.P5 confession statement, MO1 chopper was recovered as per seizure mahazar and Ext.P5(a) is the said seizure mahazar. PW11 has also deposed that furnishing correct name and address of the accused, he had made Ext.P6 report to the court. Ext.P7 request for medical examination was also marked and proved through PW11. On the seizure of Mos.3 and 4 material objects, as per Ext.P2 mahazar, those properties were produced before the court as per Ext.P8 property list. According to PW11, as per Ext.P9 property list, he had also produced MO1 chopper in the court. PW11 has further deposed that he had prepared Ext.P10 scene mahazar by which MO2 cigarette lighter was recovered and thereafter, by filing Ext.P11 property list, he had produced MO2 cigarette lighter before the court.
8. PW12 is the Doctor attached to the Medical College Hospital at that time and who examined and treated PW1 and he had issued Ext.P12 wound certificate dated 7.10.2010. When PW12 was examined, he had deposed that he had noticed four injuries on the Crl.A.No.94 of 2012 :-11-:
body of PW1 and he had deposed about the details of the injuries so noted. According to PW12 and as per Ext.P12 wound certificate, injury No.1 is a lacerated wound on the left side of the face of PW1 extending from left ear to left corner of mouth causing a fracture of the mandibles. According to PW12, the injuries in Ext.P12 by themselves may not cause death. PW12 has also deposed that injuries noted in Ext.P12 can be caused by MO1 chopper shown to him. It is on the basis of the above referred evidence and materials, the trial court entered into its finding for convicting the appellant.
9. Learned counsel for the appellant vehemently submitted that the entire prosecution allegation is false and a foisted one.
According to the learned counsel, the story put forward by the prosecution through the evidence of PW1 as to how PW1 sustained injuries is unbelievable. Thus, according to the counsel, there is serious contradiction in the evidence between the official witnesses and the injured witnesses. To substantiate the argument of the learned Crl.A.No.94 of 2012 :-12-:
counsel for the appellant that it was a false case, learned counsel invited my attention to Ext.P12 wound certificate and argued that the place of occurrence shown therein is at the house of the victim and the accused, but the entire prosecution case is that the incident had taken place outside the house. Further, it is pointed out by the learned counsel that PW1 has no case that when himself and the accused came out from the house, the accused was carrying MO1. So regarding the presence of MO1, if it is true, there is no convincing explanation or evidence from the part of the prosecution. It is the further point advanced by the counsel that PW1 was specific as to what are the objects in the hands of the accused when they came out from the house and according to PW1, the accused was holding only a cigarette lighter. To disbelieve the version of PW1, it is pointed out by the learned counsel, that even according to PW1, it was she, who asked the accused to go and bring her clothes so as to go to the hospital. According to the learned counsel, no evidentiary value can Crl.A.No.94 of 2012 :-13-:
be attached to the depositions of PWs.2,3,4 and 5 as they have no direct knowledge regarding the incident. It is also submitted by the learned counsel that the trial court has observed that the accused did not make any courtesy to visit PW1 and the said fact is taken against the accused in support of his finding. According to the learned counsel, when PW1 herself made her husband as an accused, the accused is not expected to reach in the hospital. It is also the submission of the learned counsel that though PW1 has denied, the evidence of PW2 shows that when PW1 was taken to the Taluk Hospital at Vythiri, the vehicle was stopped near the Meppadi Police Station and the information was furnished to them about the incident. It is also the submission of the counsel that PW1 was firstly taken to the Government Taluk Hospital, Vythiri from which also the intimation was expected to pass over to the Meppadi Police Station, but no document is produced in this juncture and thus, it can be seen that the prosecution has suppressed the material facts and evidence. Crl.A.No.94 of 2012
:-14-:
Thus, the learned counsel for the appellant submitted that the findings of the court below and the conviction recorded against the appellant are not legally and factually sustainable, especially when the prosecution has miserably failed to prove the case against the appellant beyond reasonable doubt.
10. On the other hand, Mr.Saneer, the learned Public Prosecutor submitted that the evidence of PW1, the injured is in tact and there is no contradiction or infirmities in her evidence. After having taken me through other evidences, the learned Public Prosecutor submitted that other witnesses examined corroborate the evidence of PW1. It is the further submission of the learned Public Prosecutor that the medical evidence consists of the deposition of PW12 and Ext.P12 wound certificate shows that PW1 had sustained serious fracture injuries. It is on the basis of the above evidence, the learned Judge of the trial court, though not inclined to accept the case of the prosecution for the offence under Section 308, convicted the accused Crl.A.No.94 of 2012 :-15-:
for the offence under Section 326 of I.P.C. Therefore, the learned Judge, after having appreciated the evidence in its proper perspective, concluded that no offence under Section 308 of I.P.C. is attracted against the accused and the only offence established by the prosecution is under Section 326 of I.P.C. and the said finding is absolutely correct and no interference is warranted.
11. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have perused the judgment of the trial court and I have scrutinised the evidence and materials on record.
12. In the light of the arguments advanced by the counsel for the appellant and the learned Public Prosecutor and in the light of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offence under Section 326 of the I.P.C.
13. As I indicated earlier, to prove the incident, the prosecution Crl.A.No.94 of 2012 :-16-:
mainly depends upon the evidence of PW1/the injured. The prosecution has no claim that any other person witnessed the incident. Therefore, the further question to be considered is whether the evidence of PW1/the injured is reliable. It is the settled position of law [vide decisions reported in Bhajan Singh @ Harbhajan Singh & Ors. v. State of Haryana [2011(4) Supreme 639] that the injured witness comes with a built-in guarantee of his presence at the scene of occurrence and is unlikely to spare his actual assailant in order to falsely implicate another. It is also settled that the evidence of an injured witness should be relied upon unless there are grounds for rejection of his evidence on the basis of major contradictions and discrepancies. Thus, let us examine the evidence of PW1 guided by the principles laid down in the above decisions. In this case, it is pertinent to note that PW1 is none other than the wife of the accused and the mother of three children. Therefore, there is absolutely no possibility to implicate the accused, his husband and the father of her Crl.A.No.94 of 2012 :-17-:
children falsely. According to the case of PW1, the accused used to take quarrel with PW1 doubting her chastity and the said facts are reiterated by the evidence of Pws.7 and 8, the children of the accused as well as PW1. Though I have repeatedly gone through the evidence of PW1, no contradiction or infirmities are found in her evidence. It is also relevant to note that immediately after the incident, she approached PW4 Benny and his wife PW5. Pws.4 and 5 deposed that in terms of the prosecution allegation and they have found PW1 in a pool of blood immediately after the incident and it was PW5 who bandaged the injuries on PW1. The further evidence of PWs.4 and 5 shows that on the basis of the information furnished, PWs.2 and 3 arrived at the spot and thereafter, PW1 was taken to the hospital. PWs.2 and 3 also deposed in terms of the evidence of PWs.1 and 4 and 5. Besides the above evidence, PW6 is the neighbour of PW1 as well as the accused and according to him, on hearing the commotion, he also rushed towards the house of PW4 where the injured was Crl.A.No.94 of 2012 :-18-:
giving first aid. The children of the accused and the victim, who were examined as PWs.7 and 8, have also deposed that when they heard commotion early in the morning, they also went to the house of PW4 and they saw their mother lying in a pool of blood. So regarding the incident, the evidence of PW1 render corroboration through the evidence of PWs.2 to 8. Though these witnesses are subjected to lengthy cross-examination, nothing brought on record to discredit their version. In Ext.P12 wound certificate, the history of the alleged cause of injury is noted as assault by the husband. It is also relevant to note that EXt.P12 document came into existence at about 9.45 a.m. on
7.10.2010 whereas the alleged incident has taken place at about 5.30 a.m. on 7.10.2010. When PW12, the Doctor was examined, he had deposed that the injuries noted in Ext.P12 can be caused by using MO1 like weapon. The third injury noted in Ext.P1 is fracture in mandibles and there are other serious injuries noted therein. So the ocular evidence of PW1 and the medical evidence are in parity and Crl.A.No.94 of 2012 :-19-:
there is no contradiction at all. In the light of the above discussion and the evidence and materials on record, I am of the view that the evidence of PW1/the injured can be safely accepted and acted upon.
14. It is true in Ext.P12 wound certificate, it is shown that the injury was sustained from the house. According to me, said endorsement in Ext.P12 is insufficient to hold that injury has not taken place as alleged by the prosecution. As per Ext.P10 scene mahazar, the exact place of occurrence is not far away from the house of PW1 and the accused. Therefore, the contention raised on the basis of the endorsement in Ext.P12 has not much relevance. Another point raised by counsel for the appellant is that the prosecution has no case that the accused was carrying MO1 when they came out of the house.
According to me, the above contention is also not maintainable since going by the evidence of PW1, it can be seen that when PW.1 and the accused were going as led by the accused, PW1 has stated that the accused was seen searching something and it is thereafter, according Crl.A.No.94 of 2012 :-20-:
to PW1, the accused attacked her with MO1 chopper. From the facts and circumstances involved in the case, it appears to me that the accused has planted a chopper at the place of occurrence and thereafter, PW1 was taken in the morning to there and he committed the offence by using such weapon. In this case, it is relevant to note that though PW11/the investigating officer has recovered MO1 chopper on the basis of Ext.P5 confession and Ext.P5(a) seizure mahazar, as rightly found by the learned Judge of the trial court, though recovery will not come under the provisions of Section 27 of the Evidence Act since no authority can be fixed upon the accused for the concealment of MO1, Section 8 of the Evidence Act is attracted. After all, it is relevant to note that even according to the defence, PW1 would have been sustained injuries at the hands of her paramour. If that be so, it is for the accused to explain his role connected with any of the situations in the given facts and circumstances involved in the case. The children PWs.7 and 8 and PW1 have categorically deposed Crl.A.No.94 of 2012 :-21-:
that on the previous night of the incident, after having dinner, all of them went to the bed. The accused has no case that he was not there in the house of the previous night of the incident. Though several persons are rushed to the spot when PW1 sustained injury, nobody has noted the presence of the accused at that time. No convincing explanation is forthcoming from the part of the accused for his absence and also not for rescuing his wife.
15. In the light of the above facts and circumstances and the evidence and materials referred to and the discussion, I am of the view that the learned Judge of the trial court is fully justified in his finding and convicting the appellant for the offence under Section 326 of I.P.C. Therefore, without any hesitation, I also concur the conviction recorded by the learned Judge in the trial court.
16. With respect to the sentence, the learned counsel for the appellant submitted that the appellant is at the age of 51 at the time of the incident and he had also undergone imprisonment for a substantial Crl.A.No.94 of 2012 :-22-:
period as an under trial prisoner and the appellant has not been involved in any other case and the accused is a sick man and therefore, a lenient view may be taken in the matter of sentence.
17. According to me, the above submission of the learned counsel requires positive consideration. Besides the grounds advanced by counsel for the appellant, in support of his claim for leniency, it is borne out from the records that the accused is a person belonging to parayan caste and he is a coolie by profession which shows that he belongs to lower strata of the society. In the absence of any previous criminal back track, according to me, the substantial sentence imposed against him requires modification.
Having regard to the facts and circumstances involved in the case and the above stated mitigating circumstances, I am of the view that the three years simple imprisonment will be sufficient to meet the ends of justice. Accordingly, while confirming the conviction of the appellant for the offence under Section 326 of I.P.C., Crl.A.No.94 of 2012 :-23-:
and while confirming the sentence to pay fine, the fine amount and the default sentence and also direction to pay compensation on realisation of the fine amount, the appellant is sentenced to undergo simple imprisonment for a period of three years. The appellant is entitled to get set off under Section 428 of Cr.P.C. for the period he had already undergone as undertrial prisoner.
In the result, this appeal is dismissed confirming the conviction of the appellant for the offence under Section 326 of I.P.C., but subject to modification, with respect to the substantial sentence alone, to the extent indicated above.
V.K.MOHANAN, Judge MBS/ Crl.A.No.94 of 2012 :-24-:
V.K.MOHANAN, J.
CRL.A.No. 434 OF 2003 Crl.A.No.94 of 2012 :-25-:
JUDGMENT Dated:11.11.2011