Kerala High Court

Pachatt Devedasan vs State Of Kerala on 26 August, 2022

        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

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

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

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

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

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

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.

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

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

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 @

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

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

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

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.