Sivadas vs State
2021 Latest Caselaw 17086 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR. JUSTICE K.HARIPAL
     FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
                        CRL.A NO. 914 OF 2011
     SC 418/2009 OF III ADDITIONAL SESSIONS COURT (AD HOC-I),
                          THODUPUZHA, IDUKKI
APPELLANTS/ACCUSED 1&2:

    1     SIVADAS
          S/O.SIVARAMAN, AGED 57,
          PANAYAKUNNEL HOUSE, KILIYIRAKARA, KARIMANOOR VILLAGE,
          THODUPUZHA, IDUKKI DISTRICT
    2     MADHU,
          S/O.SIVARAMAN, AGED 42
          PANAYAKUNNEL HOUSE, KILIYIRAKARA, KARIMANOOR VILLAGE,
          THODUPUZHA, IDUKKI DISTRICT
          BY ADV SRI.ANIL K.MUHAMED


RESPONDENT/COMPLAINANT:

          STATE REPRESENTED BY
          PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

OTHER PRESENT:

          SR.PP - SRI. M.S.BREEZ



     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.08.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.914/2011                         : 2:



                                   JUDGMENT

Appellants are the convicts in S.C. No.418/2009 on the file of

the III Additional Sessions Court (Ad hoc-I), Thodupuzha. That case

had originated on the basis of the final report laid in Crime No.134/08

of Kaliyar police station, which in turn was registered on the strength

of the first information statement given by PW1 Suresh alleging that

the appellants had assaulted and made attempts against the life of

PW2 Shaji. At the time of recording the First Information Statement

the injured PW2 was undergoing treatment in Medical Trust Hospital,

Ernakulam. After investigation, the charge sheet was laid before the

Judicial First Class Magistrate's Court, Thodupuzha alleging offence

punishable under Sections 323 and 307 read with 34 of the Indian

Penal Code.

2. The incident had happened at 8.00 p.m. on 11.05.2008 at

Karimannoor town on the Udumbannoor-Thodupuzha public road in

front of JJ Medicals. According to the prosecution, that day, out of

animosity towards CW2 Shaji, in furtherance of the common

intention, the second appellant manhandled CW2 and caused him to

fall on the ground. Then the first appellant sat on his body and

stabbed him with a chisel carried by him and caused him grievous

injuries on different parts of his person. Thus the appellants acted in

furtherance of their common intention.

3. The learned Magistrate took cognizance of the offence and

registered the case as CP 39/2009; after completing the procedural

formalities, since the commission of an offence triable exclusively by

a Court of Session was revealed, the case was committed to the

Sessions Court, Thodupuzha from where it was made over to the trial

court.

4. Before the trial court, the appellants were defended by a

counsel of their choice. After hearing counsel on both sides, when the

charge was framed, read over and explained, both of them pleaded not

guilty. They were on bail at the time of trial.

5. On the side of the prosecution eleven witnesses were

examined as PW1 to PW11 and 13 documents were marked as Exts.P1

to P13. The weapon of offence, a chisel, was identified and marked as

MO1. On conclusion of prosecution evidence, the appellants were

examined under Section 313(1)(b) of the Code of Criminal Procedure,

hereinafter referred to as the Cr.P.C. Then also both of them reiterated

their innocence. The first appellant filed a statement also in writing.

According to him, on 11.05.2008 at about 8.00 p.m. he was returning

home after purchasing milk from a bakery in Karimannoor town.

Then he found PW2 Shaji restraining his younger brother by catching

hold of his shirt from behind. Then he approached them and

questioned PW2. He was told that the brother had owed him Rs.66/-

in his account in his tea shop, that unless the amount is paid he will

not be released; he promised to pay the amount in one or two days.

Then PW2 relieved his brother and pushed him and caused him to fall

on the road. He rose up and swiftly walked away along with his

brother. But when he reached Karimannoor junction, near Pala

bakery, PW2 hit him on his face with a log wood; even though he

tried to resist the same, he was hitting on his nose below the right eye

and lips and he sustained injuries; his three teeth were lost and one of

the teeth was broken. When he fell down, PW2 again beat him with

the log wood on his right leg and left hand and caused injuries to him.

He was assaulted by other persons also. His brother was also beaten

and he was intimidated; blood was oozing from his mouth; somehow,

he escaped from their attack. If he had not escaped, they would have

killed him.

6. After hearing both sides, the learned Judge found that it is

not a fit case for acquitting the accused under Section 232 Cr.P.C.

Thereafter, the defence was called upon to enter on their evidence, if

any. But no oral evidence was adduced by them. However, Exts.D1

to D3 were marked through prosecution witnesses.

7. After hearing counsel on both sides, by the impugned

judgment, the learned Judge repelled the plea of innocence and found

both the accused guilty under Section 307 read with 34 IPC and

sentenced them to undergo rigorous imprisonment for four years and

2½ years respectively, besides fining them Rs.6,000/- each, in default

of the above, rigorous imprisonment for four months; if the fine

amount is realised, Rs.10,000/- was ordered to be paid as

compensation to PW2, the injured. Both were found not guilty and

acquitted of the offence under Section 323 IPC. That verdict is the

subject matter of this appeal.

8. I heard the learned counsel for the appellants as also the

learned Senior Public Prosecutor. Trial court records were summoned

and perused.

9. The learned counsel for the appellants submitted that the

trial court has failed to appreciate the evidence properly. There was a

counter case as Crime No.133/2008 registered against PW2 and others

which was the main case; the first appellant was the de facto

complainant in that crime. Both the appellants had sustained injuries

in the crime. Injuries sustained by the first appellant were grievous in

nature. Though both cases were tried simultaneously, PW2 and others

were acquitted and the appellants were convicted in a partisan manner,

without appreciating the evidence in proper perspective. Both PWs 1

and 2 are carpenters, that day they were returning home after the day's

work; the alleged weapon of offence is their work tool, the

prosecution has no case that the appellants had gone there after

premeditation. It is evident from records that PW2 was the assailant;

it was he who initiated the tussle by wrongfully restraining the second

appellant and assaulting him. The first appellant had gone to the spot

only to rescue him from the clutches of PW2 and others. Then they

were attacked and injured using log wood. The prosecution has not

explained the injuries sustained by the appellants. The counsel further

complained that CW8 the independent witness was not examined for

the case and the appellants were convicted basing on the partisan

version of PWs 2 and 4. From the totality of circumstances, according

to the learned counsel, there occurred a scuffle between the appellants

on the one hand and PW2 and others on the other. PW2 is not a

credible witness, that PW1 has not witnessed the entire incident. Thus

he pleaded for giving the appellants the benefit of doubt.

Alternatively it was submitted that the first appellant is a 67 year old

man and thus pleaded for showing leniency on him.

10. On the other hand, the learned Senior Public Prosecutor

strongly defended the verdict of the trial court. According to him, the

appellants did not adduce any evidence to prove that PW2 had

assaulted them without any provocation. Medical evidence indicates

that PW2 had sustained very serious injuries and had been in hospital

for long.

11. PW1 is the person who set the law in motion by giving

Ext.P1 First Information Statement. He gave the statement at Medical

Trust Hospital, Ernakulam. At that time, the injured was undergoing

treatment in that hospital from 12.05.2008 onwards. According to

him, the incident had happened in Karimannoor town in the evening

on 11.05.2008, in front of JJ Medical Store. At that time, he was

standing near the Karimannoor grotto. Hearing the hue and cry when

he reached the place of occurrence, Shaji was lying back on the road

and the first appellant was hitting him with a chisel, squatting on his

body. He caught hold of the weapon from the first appellant and

snatched it away. As his shirt and dhoti were stained in blood, he did

not take the injured to hospital. Relatives of the injured had rushed to

the place and took him to hospital in an autorikshaw. When he

approached the place of occurrence, the second appellant was found

moving through Udumbannoor road. He had identified him at the

police station also and the weapon of offence is marked as MO1. The

incident had happened at 8.00 p.m. in the night. He is a driver by

profession. He did not see the first appellant sustaining the injuries.

Similarly, he did not witness the beginning of the incident. He had

only seen the first appellant stabbing PW2 with a chisel. Later he

heard that the first appellant had sustained injuries and was admitted

in hospital. He pleaded ignorant about the version that PW2 and

others had assaulted the first appellant with a log wood and caused

loss of his teeth. He denied that he was a part-time employee of PW2.

12. PW2 Shaji is the injured. He is running a shop by name

Taj hotel in Karimannoor city. The incident had happened at about

7.30-8.00 p.m. on 11.05.2008. The second appellant had owed him

Rs.66/- by taking food from the shop on credit. That day when he

demanded money, he denied any amount due to him. When he stood

in front of him and told that he should go only after paying the money,

the first appellant reached there and questioned him. He said that the

second appellant should go only after paying the money, the first

appellant exhorted to kill him and then stabbed him with a chisel on

different parts of his body. He had fallen on the back on the road. The

second appellant squatted on his knees and the first appellant stabbed

him. Then PW1 caught hold of the first appellant and snatched away

the weapon. He was removed to the hospital.

13. He admitted having spoken to the police that there was

wordy altercations between himself and the second appellant. He also

had told the second appellant that he will not be allowed to proceed

further without paying him the money. He did not catch hold of the

collar of the shirt of the second appellant. He denied that he had

beaten the second appellant with a log wood and caused serious hurt

to the first appellant and caused injuries to the second appellant. He is

accused in Crime No.429/2010 alleging that he had caused injuries to

the appellants with a log wood along with his friends. He does not

know who were all present at the time of occurrence. The first

appellant had also abused him.

14. PW3 is a real-estate brocker and eye witness to the

occurrence. That day he was waiting for bus at Karimannoor town.

At about 8.00 p.m. in front of JJ Medicals a wordy altercation could

be seen between PW2 and appellants. Then the first appellant pushed

PW2 down and sat on him; the second appellant also sat on his legs.

The first appellant was found stabbing PW2 with a chisel. When

people gathered, the second appellant ran towards Udumbannoor.

PW1 caught the first appellant and removed the chisel from him and

handed over to CW5 Baby, Nazar and Zakkeer, CWs 6 and 7

respectively, relatives of PW2, took him in an autorikshaw to hospital.

There was light from JJ Medicals and Paul's Bakery in the place of

occurrence. There was a mercury light also near to the place of

occurrence. He identified MO1 chisel.

15. In cross-examination, he said that at the time of the

incident, he did not know the name of the appellants. The scuffle

continued only for one or two minutes. He did not see PW2

restraining the second appellant by catching the collar or attacking the

first appellant with a log wood. Similarly, he did not witness CWs 6

and 7 attacking the appellants. Later he knew that the appellants were

also admitted in hospital. He claimed that he had stated to the police

that the second appellant had sat on the legs of PW2.

16. PW4 Bobby has stated that, that day hearing noise he had

reached there. Then the PW1 was found snatching the MO1 chisel

from the first appellant and handed over to him. He placed it beneath

the panchayat waiting shed. CWs 6 and 7 had removed PW2 to the

hospital. There was street light and also light from the shops. He

identified the MO1 chisel.

17. PW5 is Dr.Harikumar, Head of the Department of

Emergency Medicine in Medical Trust Hospital, who examined PW2

at 12.05 a.m. on 12.05.2008 and issued the Ext.P2 wound certificate

and noted the following eight injuries on his person, as extracted in

the judgment:

(1) Stab wound 1 x 1 cm on the left side of neck anteriorly (2) Stab wound on the left shoulder superiorly 1 x 1 cm (3) Incised wound on the left wrist anteriorly 1 x 0.5 cm (4) Incised wound on the left side of chest laterally 1x 0.5cm (5) Incised wound on the left side flank of abdomen 1.5 x 1 cm (6) Incised wound on the left lumbar 1.5 x 1 cm (7) Incised wound on the sub-umbilical region 1 x 1 cm (8) Incised wound on the right lumbar region 1 x 05 cm

He was brought to hospital by Basheer, brother-in-law, with the

allegation of assault by someone; stabbed on 11.05.2008 at

Karimannoor. Laparotomy was done by the Cardiothoracic Surgeon;

multiple iliac tears were repaired. The patient was admitted and was

discharged on 21.05.2008. According to him, all the injuries in Ext.P2

could be produced by stabbing with MO1 like weapon. He also added

that, unless treated properly, injuries would have led to death. Injury

Nos.5 to 8 are on the abdomen. Abdominal injuries could have led to

iliac tears. In cross-examination also he asserted that MO1 like

weapon will produce the injuries.

18. PW6 is an attestor to the Ext.P3 mahazar under which

MO1 was seized by the police. PW7 is the Village Officer,

Karimannoor who prepared the Ext.P4 scene plan. PW8 is the then

Head Constable of Karimannoor police station, who recorded the

Ext.P1 First Information Statement of PW1 and handed over to the

police station.

19. PW9 Dasappan is the then Assistant Sub Inspector who

registered the crime on the basis of Ext.P1 statement. As the crime

was grievous in nature, he prepared an express report and forwarded

the file to the Circle Inspector. He had registered Crime No.133/2008

also and prepared the Ext.P6 scene mahazar. The place of occurrence

of both the crimes are one and the same. The scene of occurrence was

shown to him by Jose Thomas. He had also taken a log wood in

connection with Crime No.133/2008. In cross-examination he said

that the appellants are the injured in Crime No.134/2008. The said

Jose Thomas @ Joy was a witness. The log wood was seized as it was

used as a weapon of offence for the case. There were blood stains on

the log wood.

20. On 05/08/2008 PW10 Sulaiman was the Circle Inspector,

Kaliyar police station. He prepared the Ext.P7 forwarding note for

sending the MO1 chisel for chemical examination and also proved the

Ext.P8 report. After verifying the records he laid charge sheet before

court. He did not conduct investigation in the case. But in answer to

question put by the defence counsel he said that Crime No.133/2008

was registered in respect of injuries sustained by the appellants prior

to the cause of action in Crime No.134/2008. It did not come to him

that the appellants were acting in self defence.

21. PW11 is the investigating officer. He questioned the

witnesses, prepared the Ext.P9 report stating the name and address of

the accused; since the places of occurrence in Crime Nos.133/2008

and 134/2008 are one and the same, he forwarded carbon copy of the

scene mahazar for Crime No.133/2008. He also seized the material

object under Ext.P3 mahazar and produced before court. He arrested

the appellants on 21.05.2008 from the premises of Taluk Hospital,

Thodupuzha and produced before court with Ext.P13 remand report.

He also proved Ext.D2 copy of the First Information Report in Crime

No.133/2008 and also charge sheet in that case. According to him,

Jose Thomas @ Joy was questioned by the Assistant Sub Inspector but

he did not say that he had witnessed the incident. It was not

convincing that the appellants had assaulted PW2. PW2 did not tell

him that the appellants had sat on him.

22. It was urged before the learned Sessions Judge that the

appellants had also sustained injuries in the occurrence and that PW2

was the assailant, but these aspects were not properly considered by

the trial court. It was also contended that the trial court did not

appreciate properly the fact that the appellants had also sustained

injuries in the incident and the actual facts were not placed before the

trial court.

23. It is true that two crimes were registered, one on the basis

of the Ext.P1 First Information Statement and the other on the basis of

Ext.D2 First Information Statement given by the 1 st appellant which

led to filing of two final reports. Both cases were tried simultaneously

before the trial court. But the learned Sessions Judge disbelieved the

version of the appellants and convicted them. It is also evident that

PW2 and two others had faced trial in Ext.D3 charge sheet alleging

offence punishable under Sections 341, 323, 324, 326 read with 34

IPC. Both the crimes were investigated by different police officials.

Both the charge sheets were laid by the same Circle Inspector, though

the cases were investigated by different officials. Crime No.133/2008

was investigated by PW9 whereas PW11 investigated this crime.

Anyway PW9 had prepared the Ext.P6 scene mahazar in both the

crimes where the place of occurrence is one and the same. While

PW9 asserted that the appellants were assaulted and injured by PW2

and others with a log wood, PW11 is not convinced of the same. He

denied such suggestions. The trial court also did not appreciate the

allegation that the appellants had sustained serious injuries by the first

appellant. From the impugned judgment it is clear that the learned

Sessions Judge disbelieved the version of the appellants and acquitted

PW2 and others of the charge laid against them.

24. Though it was contended that the appellants had sustained

serious injuries in the occurrence, materials are wanting in Ext.D3

charge sheet, where copy of wound certificates of the appellants are

also incorporated. The appellants did not take care to summon and

examine the Medical Officer who had examined them and issued the

wound certificates. Merely by marking Ext.D3, the contents of the

documents cannot be read in evidence. Similarly, the appellants

contended that independent witnesses were not examined and that the

true incident has not been brought to the court.

25. Here, relying on the evidence on PWs 1, 2 and 3, the

prosecution has asserted that the appellants had assaulted and injured

PW2. Supporting medical records also indicate that PW2 had

sustained serious injuries, inflicted using a chisel like weapon; the

Doctor has specified that all the injuries were caused with a chisel like

weapon. The injuries 3 to 8 are incised wounds. Many of the injuries

are on vital parts of the body of PW2 and it was testified that if those

injuries were not timely manged, it would have caused death of the

victim.

26. The learned Sessions Judge cannot be found fault with for

giving weightage to the oral testimony of PWs 1 to 3 and also related

materials including medical evidence when a finding was reached in

favour of the prosecution under Section 307 IPC. At the same time, in

my reading apart from marking the charge sheet as Ext.D3, no serious

effort was made by the defence either to prove the injuries sustained

by the appellants or to probabilise the version that it was PW2 who

had initiated the episode by assaulting the appellants.

27. As rightly pointed out by the learned Sessions Judge,

basing on authorities, that minor injuries sustained by the accused are

no reason for disbelieving the prosecution version. Secondly, no

material has been placed before court to say that PW2 was the

assailant and that the incident had happened as suggested by the

appellants. On the other hand, oral testimony of PWs 1, 2 and 3 with

supporting materials clearly indicate that the incident had happened as

alleged by the prosecution. As mentioned earlier, PW2 had suffered

injuries on vital parts of his body with a weapon like chisel; he had

incised injuries, and therefore such an attack will attract offence under

Section 307 IPC.

28. The learned counsel for the appellants highlighted mainly

two aspects to doubt the version of the prosecution. According to him,

PW2 was the assailant and that the trial court did not properly

appreciate this fact and secondly that non-examination of independent

witnesses, especially CW8 is fatal to the prosecution. As a matter of

fact, oral testimony of PWs 1 to 3 especially PWs 1 and 3 who have

no relationship whatsoever with PW2 indicate that it was the

appellants who had attacked and injured PW2. It is true that materials

have been produced to suggest that the appellants had sustained

injuries at the time of occurrence, at the very place of occurrence. But

that does not mean that PW2 was the assailant. Possibility of some

others attacking the appellants, after the incident in question cannot be

ruled out. That should have been ruled out by adducing positive

evidence by the appellants. But that was not done. Secondly, non-

examination of CW8 cannot be raised as a big issue at this stage. The

appellants had every opportunity to adduce evidence at least in the

case in which they were made the accused; the said witness could

have been examined on their part as defence witness also. That was

not done. Moreover, it is prerogative of the prosecution to choose its

witnesses. Merely for the reason that the name of one witness shown

in the witness list, he need not be examined; the Prosecutor can pick

and choose their witnesses and for that reason also the entire

prosecution version cannot be thrown overboard.

29. For yet another reason the theory of the appellants that

PW2 was the assailant can be disowned. It is noticed earlier that PW2

had sustained serious injuries. It is not possible that a person who had

sustained injuries had attacked and injured the appellants. After

sustaining such injuries such an attack is a mere impossibility. There

is no material on record to show that before sustaining injuries he had

assaulted and injured the appellants. Therefore, merely for the reason

that the appellants had sustained certain injuries, that does not lead to

the irresistible conclusion that PW2 was instrumental in causing the

injuries.

30. It is beyond comprehension as to why the appellants did

not adduce any evidence in support of their version. It is certain that

PW2 and others who are accused in crime No.133/2008 have been

exonerated by the trial court against which the appellants have not

preferred any appeal.

31. The learned counsel had also spoken about the non-

examination of one Jose Thomas who is a witness in the charge sheet

laid against PW2 and others. It was open to the defence to examine

such witnesses. Secondly, the Investigating Officer has stated that the

said Jose Thomas had not witnessed the occurrence. Therefore, non-

examination of such a witness also is not going to change the fate of

the case.

32. After re-visiting the evidence and materials on record, I do

not have any doubt in my mind that the prosecution has succeeded in

proving the guilt of the accused for offence under Section 307 of IPC.

Both the appellants were present at the place of occurrence. It appears

that the altercation between the 2 nd appellant and PW2 was the starting

point of the incident. The 2nd appellant had owed money to PW2.

When that was demanded, he resisted and that led to a scuffle. It may

be true that PW2 had wrongfully restrained the second appellant when

he had refused to pay money and did not suggest any date for payment

of the same. But that is not a justification for assaulting and injuring

PW2. Here PW2 had sustained serious injuries; a chisel like weapon

was used; both the appellants are carpenters; such a weapon was

carried by the 1st appellant at the time of returning their home after the

day's work. The presence of both appellants has been proved beyond

doubt. Their presence, participation and active concert in the

commission of the crime stand proved through the oral testimony of

witnesses and also other materials. Therefore, the appellants are guilty

under Section 307 read with 34 of the IPC and the said finding is

liable to be confirmed.

33. All the same, the role played by the 2 nd appellant was

limited. He did not carry any weapon, at the time of incident.

Prosecution also has no case that he had used any weapon against the

appellant. At the same time, he had facilitated the commission of the

crime. Both the appellants are brothers. The 1 st appellant was

attracted to the scene on seeing PW2 restraining the 2 nd appellant. The

mental element shared by appellants cannot be the same. Therefore,

the Court is justified in giving a lesser sentence to the appellants.

34. It was pointed out by the learned counsel for the appellants

alternatively that the 1st appellant is now 67 years old and therefore, he

pleaded indulgence of the Court. No doubt, this is an appeal preferred

in 2011. The proceedings were initiated in 2008. Now more than

thirteen years have passed. Such institutional lapses should not

prejudice the parties. Thus, both the appellants are entitled to get

indulgence of the Court, having regard to the lapse of the time.

Therefore, I am of the view that substantive sentence of two years and

six months respectively will meet the ends of justice. However, the

fine amount imposed on the appellants will remain the same.

Thus maintaining the conviction and modifying the substantive

sentence, the appeal is dismissed.

Sd/-

K.HARIPAL JUDGE okb //True copy// P.S. to Judge