Joshy, S/O. Francis vs State Of Kerala
2021 Latest Caselaw 19034 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE GOPINATH P.
     MONDAY, THE 13TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943
                          CRL.A NO. 1397 OF 2006
AGAINST THE JUDGMENT IN SC 108/2005 OF III ADDITIONAL SESSIONS JUDGE
                 (ADHOC), FAST TRACK COURT NO.1, THRISSUR
APPELLANTS/ACCUSED:

     1     JOSHY, S/O. FRANCIS,
           AGED 1 YEARS
           EDALATHUVEETITIL HOUSE, VINCENT DE PAUL COLONY,, CHOVOOR
           VILLAGE, KIZHAKE ANGADI.

     2     SHAIJU, S/O.PANAMUKKATHVEETTIL,
           AGED 1 YEARS
           SURYAN, PARAKOVIL DESOM,, CHOVOOR VILLAGE.

     3     BAIJU, S/O.KALAPURAKALVEETTIL RAJU,
           AGED 1 YEARS
           PARALAM DESOM, VENGINISSERY VILLAGE.

           BY ADVS.
           P.M.RAFIQ
           P.VIJAYA BHANU (SR.)



RESPONDENT/COMPLAINANT:

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

           BY SRI SANGEETH RAJ PUBLIC PROSECUTOR


OTHER PRESENT:




THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.09.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.Appeal No.1397/2006                   2

                             JUDGMENT

This appeal has been filed challenging the conviction and

sentence imposed on the appellants in S.C.No.108/2005 on the file of

the III Additional Sessions Court, Fast Track-I, Thrissur in a

prosecution alleging commission of offences under Sections 324, 326

and 308 r/w Sec.34 of IPC.

2. The gist of the prosecution case is that, on account of

previous enemity owing to an earlier enimity on account of an incident,

which took place at a Bar known as 'Mahima Bar' in Thrissur Town, the

appellants/accused 1 to 3 in furtherance of their common intention

attacked PW3 at about 9.30 p.m. on 15.8.2004 on a road leading to

Mullakkal Bhagavathi temple within Kanimangalam Village of Thrissur

District. It is alleged that the 1 st accused attacked PW3 with a chopper,

the 2nd accused attacked him with a wooden rod and the 3 rd accused

with an iron pipe. Following investigation of the case, a final report was

laid before the Judicial First Class Magistrate Court, Thrissur. The case

was committed to the Sessions Court, Thrissur and was finally made

over to the III Additional Sessions Judge (Adhoc), Fast Track Court

No.I, Thrissur for trial and disposal. Charges were framed alleging the

commission of offences under Sections 324, 326 and 308 r/w.34 of IPC.

On the appellants/accused pleading not guilty, the case was posted for

trial. The prosecution examined PWS 1 to 9, marked Exts.P1 to P9 and

identified material objects (Mos 1 to 4). The accused were questioned

under Section 313 of Cr.P.C. and they denied all incriminating material

appearing against them. On the defence side, one document was sought

to be marked which is the complaint filed by the brother of PW3 stating

that the investigation into the crime was not progressing in the right

manner. Following trial of the case and on an appreciation of the

evidence tendered by the prosecution, the trial Court convicted the

appellants/accused under Section 308 r/w.Section 34 of IPC and

sentenced them to undergo rigorous imprisonment for four years each,

and to pay a fine of Rs.5000/- each and in default of payment of fine, to

undergo simple imprisonment for three months under Section 308 r/w

Section 34 of IPC. 75% of the fine recovered was directed to paid to

PW3 as compensation under Section 357 (1) (b) of Cr.P.C. Set off as

permissible under law was also granted.

3. The learned counsel for the appellants/accused 1 to 3

submits that the conviction is primarily based on the evidence of PWs 3

and 5. He would submit that, though PW5 is cited as an occurrence

witness, in the scene mahazar which is marked as Ext.P7, the house of

PW5 is not mentioned, though the houses of several others are seen

mentioned. He would submit that the First Information Statement was

given by the brother of PW3 on 17.8.2004, i.e, two days after the

incident. The reasons stated in the First Information Statement for the

delay in giving statement was that PW3 was unconscious following the

brutal attack on him. He submits that the statement of PW3, following

his discharge from hospital and the statement of PW5 regarding the

identification of the accused persons was at variance with the evidence

tendered by the Investigating Officer. He states that the contradiction

in the place of recording of statement of Pws3 and 5 is sufficient to

dislodge the prosecution case. He also submits that, though PW3 had

specifically stated that the accused ran away after attacking him on

CW4 (one Sujith) reaching the spot, the prosecution failed to examine

CW4. It is the suggestion of the learned counsel for the appellants with

reference to the statement given by the accused persons at the time of

questioning under Section 313 Cr.P.C. that, if Sujith had been

examined, the truth would have come out. The learned counsel for the

appellants also submits that the scene mahazar does not make any

reference to the availability of light either in front of any house nearby

or street light which creates suspicion regarding the identification of the

accused. He states that, at any rate, the conviction under Section 308

IPC cannot be sustained as the injuries in question are not sufficient to

cause death. With reference to the judgment of the Supreme Court in

Mohd. Iqbal. M. Shaikh & others v. State of Maharashtra;

(1998) 4 SCC 494, it is submitted that, where PW3 and PW5 did not

know the accused persons, they could have been identified only through

proper test identification parade and further that the accused persons

were identified on the basis of prompting from the investigating officer.

He finally submits that even if this Court were to uphold the conviction

under Section 308 IPC, this Court may consider reducing the sentence

of imprisonment on account of the fact that nearly 17 years have elapsed

since the incident and all the accused are now settled in life and living

with their families.

4. The learned Public Prosecutor on the other hand submits

that this is a case where the prosecution has successfully established the

motive, the act, has proved the injuries and the accused persons have

been correctly identified. He also states that the weapons (Mos 1 to 3)

were recovered under Section 27 of the Evidence Act. He also refers to

Section 145 of the Evidence Act to contend that the question regarding

failure to mention the house of PW5 in the scene mahazar and the

question as to whether there was sufficient light for PW3 and PW5 to

identify the accused was the matter that should have been brought out

in cross examination and on failure to do so, the accused cannot, at this

stage of appeal, contend that these issues created a flaw in the

prosecution case.

5. I have considered the contentions raised. I have also gone

through the evidence tendered by PWs 3, 5 and 7 in sufficient detail.

The evidence of PW3, the injured person would establish beyond doubt

that there was an incident which occurred at the 'Mahima Bar' in

Thrissur Town between the 1st accused and PW3 and the 1st accused had

threatened PW3 by stating as follows:-

"നനിനകക്കുള്ള മരക്കുനന്ന് ഞഞാൻ അരചന്ന് വയകക്കുനക്കുണന്ന്."

The accused have been clearly identified in the box by PW3. It is, no

doubt, true that PW3 has stated that the accused were identified when

they were produced at his house, after he was discharged from the

hospital. He also states that his statement was recorded at his

residence after discharge from the Hospital. PW7, the investigating

officer has stated that the statement of PW3 was recorded from the

hospital. This, no doubt, is a contradiction regarding the place at which

the statement was recorded. Similarly, in the case of recording of

statement of PW5, there is a contradiction in as much as while PW5

would state in the box that her statement was recorded on the date

which the accused persons were brought to the house of PW3 for the

purpose of identification, the investigating officer stated that the

statement of PW5 was recorded 10 days after the incident. These

contradictions, in my view, do not in any manner affect the prosecution

case as these are no material contradictions which would result in

causing a doubt in the prosecution case. PW1, the Doctor, who treated

PW3 immediately after the incident, has clearly given evidence

regarding the injuries caused to PW3. The injuries are also recorded in

the wound certificate which has been marked as Ext.P1. A perusal of

Ext.P1 would show that large number of injuries were caused to PW3

and the evidence of PW1 is sufficient to establish that the injury Nos.15

and 16 were sufficient to cause death. The evidence of PW5 shows that

she had clearly seen the accused persons attacking PW3 and that she

had witnessed the same clearly from the light provided by a street light.

She has also identified the accused. The First Information Statement

given by the brother of PW3 does not mention the identity of the

accused persons. The contention of the learned counsel for the

appellants that there was no way in which the First Information

Statement could have been given by the brother of PW3 since PW3 was

stated to be unconscious also does not merit consideration on account

of the fact that a reading of the First Information Statement shows that

on receiving information regarding attack on PW3, the brother of PW3,

who was examined as PW4, rushed to the hospital where he saw his

father and two neighbours. The First Information Statement only states

that, from his enquiry, he learnt that his brother had been attacked by

three unidentified persons. Therefore, nothing turns on the First

Information Statement given by PW4. The question of lack of proper

identification does not arise for consideration in this case on account of

the fact that both PWs 3 and 5 are consistent in their statement that it

was accused 1 to 3 who had attacked PW3. On account of all the

aforesaid reasons, I am of the view that the trial Court rightly convicted

the appellants/accused 1 to 3 for the offence under Section 308 IPC.

6. The only remaining question is whether the sentence

imposed on the appellant/accused 1 to 3 should be interfered with. The

trial Court has sentenced the appellants/accused 1 to 3 to undergo

rigorous imprisonment for four years together with a fine of Rs.5000/-

each and in default, to undergo simple imprisonment for a further

period of three months and also directed that 75% of fine amount

recovered will be paid to PW3 as compensation.

7. The learned counsel for the appellants submitted that A1

was aged 21, A2 was aged 27 and A3 was aged 22 years at the time of

incident and that 17 years have elapsed since the incident. He also

submitted that all the accused are now settled in life and it will be

miscarriage of justice, if the sentence of imprisonment for four years

were to be confirmed. In the totality of the facts and circumstances of

the case, I am of the opinion that the sentence of imprisonment can be

reduced from the period of four years to a period of rigorous

imprisonment for two years with fine of Rs.75,000/- each and in default

thereof, to undergo rigorous imprisonment for a further period of three

months under Section 308 r/w Section 34 of IPC. 50% of the fine

recovered can also be directed to be paid to PW3 as compensation

under Section 357(1)(b) of Cr.P.C. Set off as permissible in law can be

allowed.

In the result, this appeal is allowed in part. The conviction of the

appellants/accused 1 to 3 under Section 308 IPC is confirmed. The

appellants/accused 1 to 3 are sentenced to undergo rigorous

imprisonment for a period of two years together with a fine of

Rs.75,000/- each. On failure to pay the fine, the appellants/accused 1

to 3 shall undergo rigorous imprisonment for a further period of three

months. On receipt of the amount of fine, 50% of the amount of fine

will be paid to PW3 as compensation under Section 357 (1) (b) of

Cr.P.C. Set off is permitted under Section 428 Cr.P.C.

sd/-

GOPINATH P.

JUDGE acd