IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
CRL.APPEAL NO. 2406 OF 2007
AGAINST THE JUDGMENT DATED 07.12.2007 IN S.C.NO.296 OF
2005 OF ADDITIONAL DISTRICT COURT (ADHOC-I), KOZHIKODE
APPELLANT/ACCUSED:
PACHATT DEVEDASAN,
S/O.PADMANABHAN, ODINILAMPARAMBAU HOUSE,
BEYPORE AMSOM, KALLINGAL,
KOZHIKODE DISTRICT.
BY ADVS.
SRI.P.SANJAY
SRI.M.MUHAMMED SHAFI
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.G.SUDHEER, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 05.08.2022, THE COURT ON 26.08.2022 DELIVERED
THE FOLLOWING:
2
Crl.Appeal No.2406 of 2007
JUDGMENT
This is an appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973.
2. The appellant was the accused in S.C.No.296 of 2005 on the file of the Additional Sessions Judge (Adhoc-I), Kozhikode. He was convicted for the offence punishable under Section 307 of the Indian Penal Code, 1860, and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/- with a default sentence of rigorous imprisonment for six months. Challenging the said judgment of conviction and order of sentence this appeal has been filed.
3. This appeal was admitted to file on 11.02.2007. The sentence imposed on the appellant was suspended and he was granted bail.
4. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor.
5. Wives of the appellant and the injured are sisters. They were not on good terms following marital discord between the appellant and his wife. The appellant has a 3 Crl.Appeal No.2406 of 2007 feeling that the injured, PW1, was helping his wife in the litigation. Due to that animosity, the appellant at about 1.50 P.M. on 16.01.2001 approached PW1, who was standing in PRC Medicals near the Mofussil bus stand at Kozhikode and stabbed at the back of his chest using a knife. The stab resulted an incised wound over the interscapular area of PW1. It is alleged that the appellant inflicted injuries to PW1 with an intention to cause his death.
6. On the charge based on the said allegations, for an offence punishable under Section 307 of the I.P.C., the appellant was tried by the learned Additional Sessions Judge. PWs.1 to 18 were examined and Exts.P1 to P20 were marked on the side of the prosecution. MOs.1 to 4 are the material objects identified. The appellant was questioned under Section 313(1)(b) of the Cr.P.C. He stated that he was innocent. No defence evidence was adduced. The learned Additional Sessions Judge has considered the said evidence and reached the conclusion that there was enough motive for the appellant to assault PW1 and thereby to do him away and that the act 4 Crl.Appeal No.2406 of 2007 of stabbing PW1 by the appellant as alleged in the charge has been proved beyond doubt. Resultantly, the appellant was convicted and sentenced.
7. The learned counsel appearing for the appellant would contend that the evidence of PWs.1, 2 and 18, who are the persons mainly deposed about the complicity of the appellant, is contradictory to each other and that evidence is insufficient to establish the involvement of the appellant. Apart from the oral testimony of the said witnesses and also a few other witnesses who deposed regarding the occurrence, though not about the involvement of the appellant, the recovery evidence and abscondance of the appellant immediately after the incident are relied on by the prosecution to prove the charge. PW1 is a Police Constable. He was on traffic duty in the Mofussil bus stand on 16.01.2001. His duty time was from 11.00 A.M. to 2.00 P.M. PW6 is the Head Constable, who detailed PW1 for the duty. Ext.P4 is the notebook maintained by PW1 in which PW6 endorsed regarding the duty of PW1 on the said date. PW17 is also a 5 Crl.Appeal No.2406 of 2007 Police Constable, who replaced PW1 for the duty. He took over charge from PW1 and has been on duty. These witnesses deposed in court substantiating the said facts.
8. PW1 deposed in detail regarding the incident. He was waiting in front of PRC Medicals for purchasing medicines. The prescription was given to PW3, a salesman in that medical shop. While he was waiting in front of the medical shop, the appellant came behind and stabbed him using a knife. The appellant immediately took to his heels. He sustained an injury at the back of his chest and sat down. PW2 is a partner of Kairali Bakery, which functions nearby. He deposed that he witnessed the incident. He came there to take his friend out for lunch. At that time, he saw the accused coming to the medical shop and stabbing PW1 at his back using a knife. PW17 is another witness, who deposed regarding the incident. He would not claim that he saw the act of inflicting injury. It is his version that after his taking over charge from PW1, had been on duty. He heard a cry and therefore ran to the place. He then saw the appellant running away from the PRC 6 Crl.Appeal No.2406 of 2007 Medicals and PW1 sitting down with an injury on the back. The appellant was having a knife with him. It was PW17, who along with others assembled there, took PW1 to the National Hospital for treatment.
9. PWs.3 and 4 were the salesmen at the PRC Medical shop at the time of occurrence. PW3 deposed that he was searching for the medicine as per the prescription handed over by PW1. Hearing a cry, he came out and then saw PW1 sitting with an injury on his back. He, however, stated that he did not see the assailant. PW4 followed suit. He also stated having seen PW1 with injury but maintained that he did not see how it happened. Therefore, PWs.3 and 4 were allowed to be cross-examined by the Prosecutor. From them, no evidence to prove the identity of the assailant could be brought out.
10. After the incident, PW1 was taken to the National Hospital, Kozhikode, where he was attended by PW18. He was the Casualty Medical Officer. He issued Ext.P20 certificate regarding the examination of PW1. It is seen from Ext.P20 and from the oral testimony of PW18 that PW1 had a deep incised 7 Crl.Appeal No.2406 of 2007 wound at the interscapular area. It is opined by PW18 that such an injury could be inflicted using MO1, which is a knife.
11. While undergoing treatment PW1 gave Ext.P1 F.I.Statement to PW12. It was on 17.01.2001. PW12 has produced Ext.P1 before PW13, who has registered the crime on the basis of Ext.P13 F.I.R. The investigation was taken over by PW14, the Circle Inspector of police. He conducted the initial investigation. PW16 subsequently took over the investigation. It was PW16, who arrested the accused on 30.01.2002. It is his version that the appellant was not available in the station after the incident. His whereabouts were not known. Only after a year, he could be arrested. It is the version of PW16 that on the basis of the statement, the appellant has given while in custody, he was taken to his house. From inside the room in that house, the appellant has taken out MO1 knife and produced it before PW16. It was seized while preparing a seizure mahazar, which is Ext.P9. PW11 is a witness to the said mahazar. Besides, PW16, PW10, an Additional Sub Inspector and PW11, a person from the 8 Crl.Appeal No.2406 of 2007 same locality, deposed regarding the recovery. Ext.P9 has been duly proved also. MO1 knife was identified by PW1 as well as PW17 as the weapon used to stab PW1.
12. Exts.P11 and P16 are two letters said to have been sent by the appellant. One was addressed to his wife and the other to PW1. These letters were seized by the investigating officer under respective mahazars, Exts.P10 and P11. It was from the said letters it was found that the appellant absconded and has been living elsewhere.
13. On a detailed analysis of the oral evidence of PWs.1, 2 and 17, it can be seen that their versions regarding the incident are cogent. It is contended that the version of PW1 in Ext.P1 and in court have differences and therefore the genesis of the case has become doubtful. The appellant is not a person unfamiliar with PW1. It has been a consistent version of PW1 that it was the appellant, who attacked him. Of course, there is some sort of embellishment and exaggeration in his version. But the same would not affect the essential fact that it was the appellant, who stabbed him. 9 Crl.Appeal No.2406 of 2007
14. As regards the events followed, PWs.3, 4 and 17 deposed in court quite convincingly. Of course, PWs.3 and 4 did not see the assailant. For that alone, their evidence need not be disbelieved. It is their version that only on hearing the cry of PW1 they happen to look and see the incident. Of course, PW7 added that while he was reaching the spot the assailant holding a knife in his hand was fleeing from the scene. There is nothing unnatural in the version of the said witnesses. The incident has taken place all of a sudden. Even PW1 could not foresee the incident, and only after happening it, he realised. When that is the nature of the incident, evidence of PWs.3, 4 and 17 can well be believed to the extent that PW1 was stabbed in front of PRC Medical Shop near Mofussil bus stand, Kozhikode.
15. As pointed out above, PW1 had identified the appellant before the court as the assailant. Considering their relationship, there is no reason to doubt the identification of the appellant. PWs.2 and 17 also identified the appellant as the assailant. Their version before the court regarding the 10 Crl.Appeal No.2406 of 2007 incident stand trustworthy. Therefore, their identification of the appellant before the court can also be relied on.
16. On getting information regarding the incident, PW12 reached the hospital on the next day, ie., 17.01.2001 and recorded Ext.P1 statement from PW1. There is a delay of one day. It is quite justifiable. Immediately after the incident PW1 was taken to National Hospital, Kozhikode, where he had undergone treatment in the Intensive Care Unit. In such a situation, the delay cannot be held in any way prejudicial to the case of the prosecution. Almost a similar version regarding the incident is given in Ext.P1. Therefore, the said version renders assistance to the evidence in court regarding the incident. In other words, Ext.P1 corroborates the oral testimony of PW1 in court. The prosecution also relies on the recovery of MO1 as provided in Section 27 of the Evidence Act, 1872 and its identification by PWs.1, 2 and 17 before the court to connect the appellant to the crime. PW16, the Circle Inspector of Police, who took over the investigation from PW14, arrested the appellant on 13.01.2002. PW16 deposed 11 Crl.Appeal No.2406 of 2007 before the court that while in custody, the appellant disclosed that the knife was kept inside his house and that statement led to the recovery of MO1. The appellant took MO1 from inside the room of his house and produced it before PW16. It was seized under Ext.P9 mahazar. The evidence regarding recovery of MO1 stands unassailed. Not only PW6, but PW10 and 11 are also witnesses to the seizure. When PW1, 2 and 17, who saw the incident, identified MO1 as the weapon used by the appellant, it stands established the complicity of the appellant as well as the usage of MO1 by him to inflict the injury to PW1.
17. It is proved by the prosecution that the appellant absconded immediately after the occurrence of the crime. For more than about one year, he was not able to be traced. Under Section 8 of the Evidence Act, the subsequent conduct of an offender is a relevant fact, if the same has relation with the fact in issue. Illustration (i) to Section 8 is that if the offender, after the commission of the alleged crime, absconded, that fact is relevant. In Sidhartha Vashisht @ 12 Crl.Appeal No.2406 of 2007 Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1] the Apex Court held that the act of abscondance after the incident is a very relevant conduct under Section 8 of the Evidence Act.
18. The oral evidence regarding the incident brought on record through PW1, 2, 3, 4 and 17 sufficiently has proved that it was the appellant who stabbed PW1 causing an incised wound at his back of chest. Recovery of MO1, its identification and the abscondance of the appellant soon after the incident further corroborated the said fact. From the evidence of PW18 and Ext.P20, it is evident that the injury was serious in nature and if PW1 was not provided with timely treatment, the injury would have resulted in his death. Taking all such aspects into account, I am of the view that the prosecution has proved beyond doubt that the appellant has committed the offence under Section 307 of the I.P.C. The findings of the Additional Sessions Judge to that effect are liable only to be confirmed. I do so.
19. The learned counsel appearing for the appellant would submit that in between PW1 and the appellant, a 13 Crl.Appeal No.2406 of 2007 settlement with regard to this incident as also the other disputes was arrived at and a document evidencing the same was executed on 05.02.2011. A copy of the said agreement was placed on record along with C.M.Appl.No.1 of 2022. In the light of the said compromise, the learned counsel for the appellant seeks for quashment of the proceedings. The decisions in Ramgopal and another v. State of Madhya Pradesh [2021 (5) KLT (SC)] was placed reliance on in this regard. It was held in the decision that,-
"18. It is now a well crystalized axiom that the plenary jurisdiction of this Court to impart complete justice under Article 142 cannot ipso facto be limited or restricted by ordinary statutory provisions. It is also noteworthy that even in the absence of an express provision akin to Section 482 Cr.P.C. conferring powers on the Supreme Court to abrogate and set aside criminal proceedings, the jurisdiction exercisable under Article 142 of the Constitution embraces this Court with scopious powers to quash criminal proceedings also, so as to secure complete justice. In doing so, due regard must be given to the overarching objective of sentencing in the criminal justice system, which is grounded on the sub-lime philosophy of maintenance of peace of the 14 Crl.Appeal No.2406 of 2007 collective and that the rationale of placing an individual behind bars is aimed at his reformation.
19. We thus sum-up and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences 'compoundable' within the statutory framework, the extra-ordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C. Nonetheless, we reiterate that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations."
20. I have had anxious consideration of the facts and circumstances of this case in the light of the guidelines contained in the aforesaid decision. The nature of the offence was such that the appellant stabbed PW1 using a knife at his vital part. The incident was in the midst of the general public in broad sunlight. It is true that the personal differences 15 Crl.Appeal No.2406 of 2007 between them relating to their family relationship was the reason. It was an individual attack involving no third party. Even on taking into those aspects, it cannot be said that this is a fit case where the jurisdiction of this Court under Section 482 of the Cr.P.C. to quash the proceedings.
21. In Murali and another v. State, represented by the Inspector of Police [(2021) 1 SCC 726], the Apex Court held that the compromise between the parties can be reckoned with while deciding the quantum of sentence. It is trite that the compromise is a relevant consideration for reducing the sentence.
22. This incident occurred in the year 2001. Differences between the parties are seen sorted out. Taking into account all such aspects, I am of the view that the sentence can be reduced. Accordingly, the impugned judgment is modified and the appellant is sentenced to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.5,000/- for offence under Section 307 of the I.P.C. The fine amount is not paid the appellant has to undergo rigorous imprisonment 16 Crl.Appeal No.2406 of 2007 for a period of two months. The directions regarding set off and disposal of the properties in the impugned judgment are maintained.
The appeal is allowed in part, accordingly.
Sd/-
P.G. AJITHKUMAR, JUDGE dkr