Samson vs State Of Kerala
2021 Latest Caselaw 17340 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
   WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
                       CRL.A NO. 666 OF 2013
  AGAINST THE JUDGMENT IN SC 372/2012 OF ADDITIONAL DISTRICT
                COURT (ADHOC), THODUPUZHA, IDUKKI
APPELLANT/ACCUSED NO.2:

            SAMSON
            AGED 22 YEARS, S/O. JOSE, MANALEL VEEDU,
            CHEEYAPPARA KAMPI LINE BHAGOM, VALARA KARA,
            MANNAMKANDOM VILLAGE.

            BY ADV SRI.NIREESH MATHEW
               ADV.GAJENDRA SING RAJPUROHIT



RESPONDENT/COMPLAINANT:

            STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM - 682 031.

            SMT.M.K.PUSHPALATHA (PUBLIC PROSECUTOR)


     THIS   CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 666 OF 2013
                                   -2-



                                JUDGMENT

Appellant was the 2nd accused in

S.C No.372/2012 on the files of the III Additional

Sessions Court (Adhoc-I), Thodupuzha. After

apprehending him in Crime No.363/2012 of the

Adimaly Police Station on 17.02.2012, appellant was

released on bail on 30.07.2012, thereby undergoing

incarceration for a period of 164 days. By the

impugned judgment appellant was convicted for a

period of three months and a fine of Rs.5,000/- for

the offence under Section 324 IPC with a default

sentence of ten days, apart from a sentence of

simple imprisonment for one month for the offence

under Section 341 IPC. Both the sentences were

directed to run concurrently and set off for the

period already undergone was also allowed.

2. The above prologue is mentioned only to

convey that irrespective of the outcome of this

appeal, the appellant has already undergone the

period of sentence imposed in the judgment under CRL.A NO. 666 OF 2013

challenge in this appeal.

3. The gravamen of the allegation against the

accused in SC No.372/2012 was that, on 14.03.2012

at 6.30 p.m due to prior enmity with PW2, and in

furtherance of their common intention, 1st accused

abused and threatened to kill PW2 while the

appellant, who was the 2nd accused, inflicted a cut

injury with a chopper on the posterior side of the

left shoulder. According to the prosecution, when a

second attempt was made by the 2nd accused to

inflict an injury on PW2, he tilted his head and

avoided a possible fatal injury to PW2. The accused

were thus charged with the offences under Sections

294(b), 324, 341, 506(ii) and Section 308 read with

Section 34 of the IPC.

4. After the charges were framed against the

accused, for the offences mentioned above, and on

pleading not guilty, the prosecution in an attempt

to prove its case examined PW1 to PW8 and marked

Exts. P1 to P7. The weapon of offence alleged to CRL.A NO. 666 OF 2013

have been used for committing the crime was not

recovered. The accused marked Exts.D1 to D3 being

certified copies of final reports in three separate

cases.

5. After appreciating the evidence adduced in

the case, the learned Sessions Judge found the

accused guilty for the offences under Sections 341

and 324 of the IPC read with section 34 IPC, but

acquitted accused for the offence under Sections

308, 294(b) and 506(ii) of the IPC.

6. This appeal is preferred by the 2nd accused

alone. Going by the records of the case, the 1st

accused has already undergone the sentence imposed

upon him.

7. I have heard Adv.Gajendra Sing Rajpurohit

on behalf of Adv.Nireesh Mathew for the appellant

and the learned Public Prosecutor

Adv.M.K.Pushpalatha.

8. The learned counsel for the appellant

vehemently contended that, the prosecution case has CRL.A NO. 666 OF 2013

not been proved beyond reasonable doubt and in the

nature of the evidence adduced before the Trial

Court, the prosecution story is not only shaky but

is also unworthy of belief. The learned counsel

implored this Court to appreciate the failure of

the learned Sessions Judge to rivet its attention

to the various defects in the prosecution story.

Specific reference was made by the learned counsel

to the failure to recover the weapon of offence as

well as the evidence of PW2 about the nature and

manner of injury inflicted upon the said witness.

9. The injury allegedly caused to PW2 was a

minor one as is evident from Ext.P1. The injury

noted in Ext.P1 is "contused linear abrasion". It

was impossible for such an injury to have been

caused as alleged by the prosecution, urges

Adv.Gajendra Sing Rajpurohit. He therefore, submits

that the accused is entitled for the benefit of

doubt in spite of the fact that he has already

undergone the period of sentence.

CRL.A NO. 666 OF 2013

10. The learned Public Prosecutor on the other

hand contended that, the failure to recover the

weapon of offence by itself is not a ground for

disbelieving the prosecution case and on the other

hand, PW1, the doctor who issued Ext.P1 wound

certificate had clearly opined in chief examination

that the injury could be caused as alleged.

11. I have considered the rival contentions. A

perusal of the evidence adduced before the Trial

Court, especially that of PW2 and PW1, I am of the

view that an incongruity looms large on the

prosecution case which creates doubt upon the

manner in which the prosecution had unfolded its

story.

12. PW2 is emphatic in his deposition that the

appellant came running with a chopper in his hand

and inflicted a cut on his left shoulder. Even in

the cross examination he refuses to budge from the

said statement given in chief and asserts that the

injury was caused on account of the cut inflicted CRL.A NO. 666 OF 2013

with the chopper by the 2nd accused. Unfortunately

for the prosecution the said evidence when

juxtaposed with the documentary evidence Ext.P1

wound certificate and the oral evidence of PW1, it

can be understood that, there was no cut injury as

alleged. PW1 was certain in his view that the

injury caused on PW2 a minor one and also that if a

person is struck with a sharp edged weapon a severe

injury will result. The aforesaid is a crucial

incongruity. The inconsistency in the evidence of

PW2 with that of PW1 failed to catch the attention

of the learned Sessions Judge. The aforesaid

incongruity compels this Court to doubt the manner

in which prosecution story was unfolded by the

prosecution. The said incompatibility in evidence

paves the way for giving benefit of doubt to the

accused. The only conclusion in view of the above

crucial incongruity is that, the prosecution case

does not inspire confidence to warrant a conviction

of the accused.

CRL.A NO. 666 OF 2013

13. Since the very foundation of the

prosecution case is rendered doubtful, the other

evidence adduced by the prosecution is not required

to be considered, however it is worth mentioning

that the learned Sessions Judge failed to

appreciate the case in its proper perspective and

the same had led to the conviction of the accused.

Having regard to the circumstances as

mentioned above, I am of the view that, the

appellant is entitled to be given the benefit of

doubt and is therefore liable to be acquitted.

Accordingly, I set aside the conviction and

sentence imposed upon the appellant in

S.C.No.372/2012 on the files of the III Additional

Sessions Judge (Adhoc-I) Thodupuzha and allow this

appeal.

Sd/-

BECHU KURIAN THOMAS JUDGE hmh