Joy, S/O. Kuttappan @ Kuttai vs State Of Kerala
2021 Latest Caselaw 13995 Ker

Crl.A.No.1157/2006                    1



             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE T.R.RAVI
   WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
                       CRL.A NO. 1157 OF 2006
   AGAINST THE JUDGMENT IN SC 57/2006 OF ADDITIONAL SESSIONS
                      COURT (ADHOC)-I, KOTTAYAM
APPELLANT/ACCUSED No.1:

          JOY, S/O. KUTTAPPAN @ KUTTAI,
          KULATHUMKAL HOUSE, VATAKKUNNUM MALA BHAGOM, ALAPRA
          KARA, MANIMALA VILLAGE.


          BY ADV SRI.M.P.MADHAVANKUTTY


RESPONDENT/COMPLAINANT:

          STATE OF KERALA
          REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
          ERNAKULAM.


          BY PUBLIC PROSECUTOR SMT.S.L.SYLAJA


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
30.06.2021,     THE     COURT    ON   07.07.2021,DELIVERED    THE
FOLLOWING:
 Crl.A.No.1157/2006                     2




                             JUDGMENT

Dated this the 7th day of July, 2021

The 1st accused in Sessions Case No.57 of 2006 on the file of

the Additional Sessions Judge, (Adhoc)-I, Kottayam, has filed this

appeal being aggrieved by the judgment dated 06.06.2006 whereby

he was found guilty of an offence under Section 308 of the Indian

Penal Code and convicted and sentenced to undergo rigorous

imprisonment for four years with a fine of Rs.3,000/- and in default

of payment of fine to undergo rigorous imprisonment for six months.

It is further held that if the fine amount is realised, Rs.2,500/- is to

be paid to the victim PW4 as compensation under Section 357(1)

Cr.P.C.

2. Heard Sri M.P.Madhavankutty, learned counsel for the

appellant and Smt.Sylaja learned Public Prosecutor.

3. The case of the prosecution is that on 24.07.2004, at

about 7.30 p.m., the 1st accused stabbed PW4, and the 2 nd and 3rd

accused beat PW4 on his cheek and his back respectively, in

furtherance of their common intention to cause the death of PW4,

and thereby committed the offence punishable under Sections 308

and 323 read with Section 34 of the IPC. Before the court below,

PW1 to PW11 were examined on the side of the prosecution, and

Exts.P1 to P8 were marked. On the side of the defence, DW1 was

examined. There are no material objects in the case since the

weapon allegedly used for the stabbing was not recovered. The

court below on considering the evidence found that accused 2 and 3

are not guilty and acquitted them. The appellant was found guilty of

the offence under Section 308 IPC and was convicted and imposed

with the sentence referred above.

4. The main contention of the learned counsel for the

appellant is that no offence under Section 308 IPC is involved in the

case and the offence as made out by the prosecution can at best

amount to one under Section 324 of the Indian Penal Code.

5. According to the prosecution, on 27.07.2004, at about

11.45 a.m., PW2 (Chandradas) had gone over to Manimala Police

Station and lodged a complaint before the then Head Constable

(PW9) alleging that on 24.07.2004 at about 7.30 p.m., the 1 st

accused (Joy), stabbed PW4 (Saji) in front of a petty shop run by

one Rajappan at Melekavala Bhagom. Saji is the son of Sri Gopidas,

the elder brother of Chandradas. It is stated in the complaint that

the 2nd and 3rd accused had beaten Saji with their hands.

Chandradas has not witnessed the incident. According to him, he

came to know of the assault at about 9.30 p.m. on 24.07.2004

when he reached the junction. On coming to know that Saji was

taken to Medical College Hospital, Kottayam for treatment,

Chandradas went to the hospital and on enquiring about the

incident, he came to know that Saji had accosted Joy as to why he

had assaulted his son PW5 (Binu). It is stated that Joy had

questioned Saji's intervention and Saji had answered that he had a

right to question the action of Joy. The case is that immediately Joy

had stabbed Saji. He has further stated that Saji is admitted to the

hospital and he could not speak. PW9 recorded the complaint and

registered Crime No.120 of 2004. After completion of the

investigation, the Sub Inspector of Police, Manimala, submitted the

charge against the accused alleging that they are guilty of offence

punishable under Sections 308 and 323 read with Section 34 of the

IPC.

6. PW1 is the Doctor who examined Saji when he was taken

to the Taluk Government Hospital, Kanjirappally. He has stated that

Ext.P1 wound certificate was issued on 25.07.2004. It is stated in

Ext.P1 that the injuries that were noticed are "one penetrating injury

on the left flank, 10 cm above pelvis with omentum protruding out.

The wound is incised in nature to the size of 3cm x 1cm." It is

specifically stated that the depth of the wound had not been

assessed and that the patient had stated that the wound was caused

by a knife stab inflicted by one Joykutty at Melekavala. In column

18 of Ext.P1, provided for entering the doctor's opinion as to reason

for injury, PW1 has stated "may be as alleged". It can further be

seen from Ext.P1 that Saji was treated in the casualty and referred

to Medical College Hospital, Kottayam. During the chief examination,

PW1 stated that the injury is serious and if not treated in time, it

can cause death. During cross-examination, PW1 has specifically

stated that Saji was conscious and had narrated the incident.

7. Chandradas, on whose complaint the crime was

registered, has stated in his deposition that he had not seen the

incident but came to know about it when he reached Melekavala at

9.30 p.m. on 24.07.2004. Regarding the 3 days' delay in filing the

complaint before the Police, his explanation is that when he had

gone over to the Medical College Hospital, Saji was in the operation

theatre, that there was a bus strike on that day and he could not go

to the Police Station, that he was expecting the Police to come and

take the statement from Saji and that it was only because the Police

did not come, he had gone over to Manimala Police Station on

27.07.2004 and given Ext.P2 complaint. In Ext.P2, Chandradas had

stated that Saji was taken to the hospital by Kinattingal Aniyan and

others in a jeep. It is stated that he reached the hospital at about

1.00 a.m. on 25.07.2004. He has stated that he met Saji and Saji

had given him the details of the incident and that Saji cannot speak

and is in treatment in Ward No.15 of the hospital. During cross-

examination, Chandradas has stated that Joy had attacked his son

Binu, on an earlier occasion. He also goes on to say that he did not

see Saji when he had gone to the Medical College and that he got

the information from one Kunjumon and Uzhappayil Aniyan from the

bus stand near the Medical College. When confronted with the

contrary statement contained in Ext.P2, PW2 has specifically stated

that he did not say so to the Police and that Saji was unconscious

when he had gone to Medical College. The above said contradictions

cannot be taken lightly, since one cannot go wrong on aspects like

meeting a near relative who is hospitalised on account of stabbing,

and that too where PW2 himself had lodged the complaint Ext.P2

before the Police, three days later. PW3 is the Village Officer, who

had prepared the Scene Plan marked as Ext.P3 and he has proved

the said document.

8. Saji, who is the victim examined as PW4, has a version

quite contrary to what was stated by PW2 Chandradas. According to

him, on 24.07.2004 at 7.30 p.m., he had accosted Joy as to why Joy

had pushed Binu and attempted to beat him. According to Saji, Joy

retorted by asking him what was his right to question him and he

had replied that he has the right and immediately Joy had stabbed

him and accused 2 and 3 had beaten him. According to Saji, Binu

had told Joy not to go to the house of one Valsa (DW1), who is

stated to be the daughter of the elder brother of Binu's paternal

uncle and that an altercation had ensued between Joy and Binu on

that count. According to the defence, Joy had questioned Binu

regarding Binu talking to one Kunjumol on the side of a gully near

the Manimala Mosque. During Cross examination, to a suggestion

put to Saji about the above said incident, he denied any knowledge.

To a specific question whether the incident had occurred as a result

of an animosity due the earlier incident, Saji has replied in the

negative. According to him while he was returning from his job on

24.07.2004, he met Binu and both of them together had purchased

materials and were returning home and that was when they saw

Joy. He says that there were no altercations and that Joy had

stabbed him immediately when he replied that he had the right to

question Joy's action in beating his brother. He further says that he

was hospitalised for more than a week and that the Police had taken

his statement after he returned home from the hospital. Curiously,

the dress that he was wearing at the time when he was stabbed, is

also stated to have been lost in the hospital. He further says that he

had not fallen unconscious and that he had met Chandradas and his

other relatives at the hospital. According to him, when he was

stabbed, he cried and went over to Binu. He had specifically stated

that he had not given any statement to the Police on 29.07.2004,

which goes against the prosecution version. To a suggestion put

during cross examination that it was Binu who had attempted to

stab Joy and accidentally Saji was hurt, PW4 answered in the

negative.

9. Binu (PW5) is the son of Chandradas and thus a cousin of

Saji. He was with Saji when the incident took place and is an eye

witness. According to him also, Joy had stabbed Saji, when Saji had

asked him why he had beaten Binu. He also specifically says that

he was returning home along with Saji, when they saw Joy.

According to him, he was standing at a distance of about 3 to 4 feet

from Saji when Joy stabbed Saji. He further states that Saji fell

backward when he was stabbed. However, this differs from the

version of Saji, who does not say that he had fallen but instead says

that when he was stabbed, he started crying and went over to Binu.

A suggestion is put to Binu during cross examination Joy who was

standing near the house of Olikkal Sibi was brought by Saji to

Melekavala where Binu standing, that Saji had held Joy to help Binu

to stab Joy and that when Joy side stepped, Saji who was standing

behind Joy was injured. Binu denied that suggestion.

10. PW6, Aniyan, turned hostile to the prosecution and said

that he had not witnessed the incident but he says that he had also

accompanied Saji to the hospital. He was confronted with Ext.P4

statement he had given to the Police wherein he has stated that he

had seen Joy stabbing Saji and he denied having made such a

statement.

11. PW7, Rajappan, near whose shop the incident is said to

have taken place, is examined as another witness to the incident. He

says that Joy stabbed Saji but says that he did not see the 2 nd and

the 3rd accused beating Saji. He denies having stated to the Police

about the involvement of the 2nd and 3rd accused and further says

that he does not know the reason why Joy stabbed Saji. He was also

declared hostile. During cross examination he says that he is a

handicapped person and had stopped running his shop and he used

to come and sit in the shop for collecting earlier dues. His specific

case is that he reached his shop at 7.15 p.m. and at that time Saji

was near his shop and that Binu and Joy came some time later. This

version is against the version of both PW4 and PW5. He says that he

was standing 2½ feet away from Saji but did not hear what Saji and

Joy were telling each other. According to him the first person who

reached the spot was Saji and that Joy came about 10 to 15

minutes later. He also goes on to say that Saji spoke out that Joy

had stabbed him with a knife. Neither PW4 nor PW5 have a case

that Saji had made such a statement when he was stabbed.

12. PW8 is the Doctor and Senior Lecturer in the Medical

College Hospital, who had issued the discharge certificate which is

produced as Ext.P6. He has been examined only to prove the

discharge certificate, as per which Saji was admitted on 24.07.2004

and discharged on 04.08.2004. All that he has stated about the

injury is that there is a penetrating injury on the left side of the

abdomen and Saji had undergone surgery. Ext.P6 certificate does

not contain any specific details regarding the injury. It only says

that Saji had undergone laparotomy operation, conducted by Dr.

M.N. Sasikumar. Going by Medical Texts, Laparotomy surgery is a

procedure for making an incision into the abdominal cavity to gain

access into the abdominal cavity and is performed either as

exploratory surgery or as the first step in an abdominal operation.

As such, neither Ext.P6 nor the deposition of PW8, is of any help to

understand the nature of the injury suffered by Saji, its seriousness

and the treatment rendered to him, so that the Court can come to a

conclusion whether the injury was simple or grievous.

13. PW9 is the Head Constable who had taken the First

Information Statement of PW2 on 27.07.2004. In cross examination

he has stated that he had not taken the statements of PW4, PW7

and CW6. PW10 is the Sub Inspector of Police of Manimala Police

Station during 2004, who had investigated into the crime initially. It

is at his instance that Ext.P8 report was filed, for adding offence

under Section 308 IPC also for investigation. Earlier only Sections

323 and 324 were charged against the accused. He says that he had

taken statement of PW7 which is marked as Ext.P5 and that the

investigation was continued by CW13. He has stated that no

intimation had been received from the Hospital and the case was

registered when PW2 Chandradas had come to the Police Station on

27.07.2004. PW11 is the Sub Inspector of Police who laid the

charge.

14. When it comes to motives, there are two versions before

the Court. One is the version of Saji and Binu that Binu had

questioned Joy for having visited the house of their near relative

Valsa and that was the reason why Joy had beaten/tried to beat

Binu. According to them, when the above action of Joy was

questioned, Joy stabbed Saji. The other is the version of the accused

which is indicated through suggestions put to PW4 and PW5 during

cross examination; that Joy had questioned Binu's conduct in talking

to one Kunjumol by the side of a gully near Manimala mosque which

led to the incident, where Binu had tried to stab him and

accidentally Saji was hurt. The suggestion is denied by PW4 and

PW5. Regarding the motive put forward by PW4 and PW5, the lady

involved named Valsa, was examined as DW1. She admits to be a

near relative of PW2, the father of PW5. She specifically says Joy

has not come to her house. She further says that she knows about

the injury to PW4, that Binu had gone to her house and said that

Saji was injured due to Binu's mistake and that she should depose

as a witness and state that Joy stabbed Saji. She says that she told

Binu that she will not be a witness. She further says that she had

visited PW4 in the hospital. She supports the version of Joy that the

dispute between Joy and Binu occurred when Binu was seen talking

to Kunjumol.

15. When the appellant was examined under Section 313,

after closure of the evidence on the side of the prosecution, he had

submitted a written submission. He has stated therein that he and

Binu were friends earlier, that Binu had asked him whether he can

marry Binu's cousin Sunumol, that he had met with an accident and

his legs were dislocated and he was undergoing treatment, that it

was while undergoing treatment, he had seen Binu talking to

Sunumol near the Manimala mosque, that two weeks later he

started walking and had met Binu in a tea shop, that he asked Binu

what he was talking to Sunumol and then Binu became angry and

went off from the place. According to the appellant, some persons

who had witnessed the incident informed Binu's parents that the

accused had beaten Binu and the family members of Saji were

hence planning to assault him. According to the appellant, he was

avoiding going to the junction and that on 24.07.2004, he had gone

there to purchase some snacks to be distributed during a prayer

session to be held at his residence. According to him, he met Saji

when he was in front of Olickal Siby's house and Saji had taken him

to Binu. He has stated that since he had difficulty in walking he had

held the shoulders of Saji. It is his case that Binu had attempted to

stab him and when he warded off, the knife hit Saji.

16. The offence alleged against the accused are under

Sections 308 and 323 read with 34 of the Indian Penal Code. After

considering the evidence, the court below found that the evidence of

DW1 is not believable and that the injury sustained by PW4 was

serious. The court below relied on the evidence of PW4 and PW7,

who in the opinion of the court below were reliable and independent

witnesses and found that there is no evidence of any animosity

between PW4 and the accused so as to implicate the accused in a

false case. The Court below found that the offence charged against

the accused 2 and 3 are not proved and acquitted them. However,

the Court below found that the accused had brought a weapon with

him, that the attack was a pre-planned one, that it was not one

which happened on sudden provocation, and that the evidence of

PW7 proved beyond any shadow of doubt that the 1st accused

stabbed PW4 using a knife and that he is the aggressor.

17. Section 308 reads thus;

"308. Attempt to commit culpable homicide.--Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."

18. The essential ingredients of an offence under the Section

are (1) that an act was committed by the accused (2) that the act

was done with the intention or knowledge that he shall be guilty of

culpable homicide not amounting to murder. (A culpable homicide

will not amount to murder either if the act is done with the intention

or knowledge referred to in Section 300 IPC but under

circumstances which would bring the case within one of the

exceptions mentioned in that Section or if the act is done with the

intention or knowledge referred to in Section 299 but not falling

under clauses 2, 3 and 4 of Section 300 IPC).

19. The learned counsel for the appellant contended that no

offence under Section 308 IPC has been made out by the

prosecution. The learned counsel for the appellant placed reliance on

the judgment of the Hon'ble Supreme Court in Ramji Surjya &

Anr. v. State of Maharashtra [(1983) 3 SCC 629] in support of

the contention that delay in giving the first information to the Police,

which is not properly explained, can only be viewed with suspicion.

He placed reliance on the judgment of the Hon'ble Supreme Court in

Yogesh Singh v. Mahabeer Singh & Ors. reported in [(2017) 11

SCC 195] in support of the contention that the evidence of closely

related witnesses is required to be carefully scrutinised and

appreciated before any conclusion is made to rest upon it to convict

an accused. The counsel does not contend that evidence should be

disbelieved on the ground that the witnesses are related to each

other, but only contends that the evidence requires to be scrutinised

since there is always a possibility of the evidence being self-serving.

Such a contention is taken in the light of the fact that PW2, PW4 and

PW5 are close relatives, whose evidence is of utmost importance in

the case. There is considerable force in the above contention since

the evidence tendered by the above three persons have several

contradictions, which have already been extracted earlier. Even

though the counsel for the appellant pointed out that the weapon

used for inflicting the wound has not been recovered, he fairly

submitted that if the evidence of the injured witness is corroborated

by the other witnesses and the medical evidence, non-seizure of the

weapon will not affect the credible version of the witnesses.

20. The learned counsel for the appellant also places reliance

on the judgment of the Apex Court in Bishan Singh v. State

[(2007) 13 SCC 65], wherein the Hon'ble Supreme Court held that

before an accused can be held to be guilty under Section 308 IPC, it

was necessary to arrive at a finding that the ingredients thereof,

namely, requisite intention or knowledge on the part of the accused

to cause culpable homicide is required to be proved. In the case

before the Apex Court, six persons who had previous enmity with

the injured allegedly accosted him and seven injuries had been

caused, one out of them being grievous. The Court set aside the

conviction under Section 308 and imposed a sentence of fine on the

accused.

21. The above decision was later considered by the High

Court of Delhi in the judgment in Rajbir Singh v. State [(2014) 5

HCC (Del) 537] : [2014 SCC OnLine Del 1405]. In paragraph 9

and 14 of the judgment, the Court held as follows:

"9. The main question which comes up for consideration is as to whether charge under Section 308 IPC is made out in the facts of the case. It was held by the Hon'ble Supreme Court in Ved Kumari v. State [2002 SCC OnLine Del 168 : (2002) 96 DLT 820] that in order to constitute offence under Section 308 IPC it must be proved (i) that the accused

committed an act; (ii) that the said act was committed with the intention or knowledge to commit culpable homicide not amounting to murder, and (iii) that the offence was committed under such circumstances if the accused by that act had caused death he could have been guilty of culpable homicide. It was further ruled that intention is a question of fact which is gathered from the acts committed by the accused and knowledge means awareness of the consequences of the act.

In Velu v. State [2004 SCC OnLine Mad 932 : 2004 Cri LJ 3783] , when the prosecution witnesses were unloading the iron rods after parking their lorry in front of the factory, the accused came there in a van, questioned PW 2 for parking his lorry in such a way which was preventing his vehicle from coming snide the factory, and that resulted in an altercation between them. Within a few minutes the accused armed with an iron pipe hit on the back side scalp of PW 2. It was held that since the appellant caused the blow in a spur of moment and there was no proper planning or premeditation, the offences punishable under Section 308 IPC was not made out and the appellant was guilty only of offence punishable under Section 324 thereof.

In Bishan Singh v. State [(2007) 13 SCC 65] , the injured suffered as many as seven injuries including three lacerated wound out of which two were on the scalp and one was on the right forehead. He also had a fracture with dislocation of wrist joint. The Supreme Court, however, felt that the accused could not be convicted under Section 308 IPC and the case would fall under Sections 323 and 325 thereof.

xxxxxxxx xxxxxxxx xxxxxxxx

14. In these circumstances, when the injuries have been caused in the course of a quarrel, both the parties have sustained injuries, the weapon of offence has not been produced, the court does not know what precisely was the weapon used and what was its shape and size, it would be difficult to say that the appellants caused the injuries to the prosecution witnesses with such intention or knowledge and under such circumstances that if they by that act had caused death they would be guilty of culpable homicide not amounting to murder. Consequently, the conviction of the appellants under Section 308 IPC would not be justified. In the facts and circumstances of the case, the appellants are likely to be convicted are likely to be convicted under Sections 323/34 IPC for causing hurt to the prosecution witnesses.

22. Applying the above legal principles to the facts of the

case on hand; that an act was done towards the victim cannot be in

doubt in the case on hand, since there is sufficient proof to show

that the victim was injured and hospitalised and the cause for the

injury is a knife or a sharp instrument. On the question whether the

act was committed by the accused, the witnesses examined by the

prosecution support such a case. The accused however has a case

that it was PW5 Binu who had actually tried to stab the accused but

when the accused moved away, PW4 was injured. According to the

accused, it was for the purpose of saving PW5 who happens to be

the son of PW2 who informed the Police about the crime, that the

accused has been made the aggressor. It is his further case that

even according to the prosecution, he was not the aggressor and it

was PW4 and PW5 who had on their way back to home, accosted

the accused and questioned him regarding a previous conduct

wherein the accused had allegedly hit PW5. Going by the

prosecution case, it is difficult to hold that the action of the accused

was pre-planned or pre-meditated, particularly, since there is no

case for the prosecution that it was the accused who had confronted

PW4 and PW5. The evidence on record does not support a case of

intention or knowledge on the part of the accused as is required for

an offence under Section 308. As already noted neither PW4 nor

PW5 speak of any altercation prior to the stabbing. PW4 specifically

says that the incident was not due to any previous animosity. Both

PW4 and PW5 say that while on their way back home, they saw the

accused and it was PW4 who had accosted the accused. PW7 on the

other hand says that PW4 was already in the scene of occurrence by

7.15 PM and that PW5 and the accused had come some time later.

Even if the contradiction in PW7's evidence is ignored, the fact

remains that it was not the accused who had gone in search of PW4

and PW5, with an intention to stab PW4. Even going by the version

of PW4 and PW5, the accused had no reason to stab PW4, till PW4

questioned the accused regarding his dispute with PW5. In the

above circumstances, it is not possible for this Court to hold that an

offence under Section 308 IPC has been committed by the accused.

Even though the court below has extensively extracted the evidence

tendered by the prosecution witnesses, I find that many of the

obvious inconsistencies in the evidence has been lost sight of. The

finding of the court below that PW7 is a reliable and independent

witness does not appear to be justified on the basis of his evidence.

The evidence tendered by PW7 is totally against the prosecution

case itself. Even according the injured, it was Binu and himself, who

had gone over to the appellant and it was the injured Saji, who had

accosted the appellant. According to PW7, Saji was the first person

to arrive at the scene of occurrence and Binu and the accused came

about 15 minutes later. The above inconsistency has been totally

overlooked by the Court below, while rendering a finding that the

accused was the aggressor. PW7, who was admittedly standing

about 2 feet away does not speak anything about where the accused

was carrying the knife and how he took out the knife and stabbed

Saji. The evidence of PW7 to explain his presence in the scene of

crime is also not believable. According to him, he no longer conducts

any business in the shop and that he visits the shop to collect

previous dues. It is very difficult to believe that he comes for the

above said purpose to the shop at 7.15 PM on 24.07.2004, which

happens to be a Saturday. He also speaks about having heard Saji

say that he had been stabbed by Joy, while neither Saji nor Binu

have such a case. In my opinion, the court below has not

appreciated the evidence on record in its entirety and has failed to

notice several serious discrepancies and that too in the evidence

tendered by the crucial witnesses like PW4, PW5, PW7 and PW2. The

court below also failed to properly appreciate the fact that there is a

total dearth of medical evidence available in the case. The

inconsistencies in the versions of PW2, PW4 and PW5 and the

inconsistency regarding even the date on which the statement of the

injured was taken by the Police are also significant. The judgment of

the court below finding the appellant guilty of offence under Section

308 is liable to be set aside.

23. A question would then arise as to whether the accused is

guilty of offence under Sections 323 or 324 of IPC, for having

caused hurt. Since the wound is proven to be a stab wound, Section

324 of IPC would be the relevant provision which will be applicable.

Section 323 had obviously been included to rope in accused 2 and 3,

regarding whom, there is no allegation that they had used any

weapons. The counsel for the appellant contended that in the

absence of any medical evidence and the failure to recover the

weapon that caused the injury to PW4, coupled with the fact that

the depositions of PW4, PW5 and PW7 contain several contradictions

and the delay in reporting the case to the Police, the appellant is

entitled to be acquitted. At any event, the counsel submits that

there is nothing on evidence to show that the hurt comes under any

of the 8 categories stipulated in Section 320 of Indian Penal Code,

warranting a larger punishment than the one contemplated in

Section 324 of Indian Penal Code. PW1 and PW8 are the two

Doctors who have been examined. The two documents which can

show some semblance of medical evidence are Exts.P1 and P6.

Ext.P1 though it is stated to be a wound certificate, it is a certificate

which has been issued by PW1 who has initially attended the victim

and had referred him to the Medical College Hospital without

conducting any medical procedure. Admittedly, he had not examined

the depth of the wound and the certificate also does not contain any

such indication. PW8 on the other hand has been examined by the

prosecution only for the purpose of proving the discharge certificate

which again does not show any details regarding the wound but only

shows that the surgery was conducted. The Doctor who actually

treated the victim has not been examined and none of the medical

records relating to the treatment have been produced in evidence.

There is total lack of evidence regarding the nature of injuries and

this Court is not in a position to say whether the injury is simple or

grievous. However, it is also not possible to accept the version of

the appellant that it was PW5 who had attempted to stab him and

that the knife had accidentally struck PW4. None of the witnesses

examined in the case support such a version. Nor has any attempt

been made to cross examine the eye witnesses like PW6 and PW7

on the above issue. Except for making suggestions to PW4 and PW5,

no further attempt was made to prove such a case. In the above

circumstances, while setting aside the finding of guilt under Section

308, I am inclined to take the view that the appellant is guilty of

offence under Section 324 of the Indian Penal Code.

24. Now, coming to the sentence to be imposed, I find that

there are certain factors, which compel me to take a lenient view.

The incident is of 1984. Twenty three years have elapsed. The

appellant had remained on bail all this while. There is no case for

the prosecution that the appellant had ever misused the privilege of

bail. The incident does not reflect any cruelty on the part of the

appellant or any mental depravity. Hence, I am of the opinion that it

may not be proper for this Court to send the accused back to prison.

Taking note of the fact that the injured had suffered pain and had to

remain in hospital for more than a week, I am of the opinion that

the appellant shall be imposed with the punishment of

imprisonment, for the period which he has already undergone and

with a fine of Rs 25,000/- (Rupees Twenty Five thousand only) and

on default in payment of fine, he shall undergo simple imprisonment

for a period of one year. If the aforementioned amount is realised, a

sum of Rs 20,000/- (Rupees Twenty thousand only) out of the sum,

is to be paid to the injured PW4. The judgment of the court below

stands modified as above.

Sd/-

T.R.RAVI, JUDGE

dsn