Kerala High Court

Biju vs State Of Kerala on 7 February, 2024

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
                    CRL.APPEAL NO. 1199 OF 2007
 AGAINST THE JUDGMENT DATED 05.06.2007 IN SC 210/2005 OF
        ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM
 CP 110/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,
                           NORTH PARAVUR
APPELLANTS/ACCUSED NOS.2, 3 & 5:

    1          BIJU
               S/O BABU, ALINKAL VEEDU, KOVILAKATHUM KADAVU,
               NORTH OF CHERAI BEACH, PALLIPURAM KARA,
               PALLIPURAM VILLAGE.
    2          NARAYANAN, S/O. SANNAPPAN,
               ALINKAL VEEDU, KOVILAKATHUM KADAVU, NORTH OF
               CHERAI BEACH, PALLIPURAM KARA, PALLIPURAM
               VILLAGE.
    3          KRISHNAN, S/O. SANNAPPAN
               ALINKAL VEEDU, KOVILAKATHUM KADAVU, NORTH OF
               CHERAI BEACH, PALLIPURAM KARA, PALLIPURAM
               VILLAGE.
               BY ADV SRI.P.M.ZIRAJ


RESPONDENT/COMPLAINANT:

               STATE OF KERALA
               REPRESENTED BY PUBLIC PROSECUTOR, HONOURABLE
               HIGH COURT OF KERALA, ERNAKULAM.
               SMT.PUSHPALATHA MK, SR.PUBLIC PROSECUTOR


        THIS    CRIMINAL   APPEAL   HAVING    COME   UP   FOR   FINAL
HEARING    ON    31.01.2024,   ALONG   WITH   CRL.A.238/2008,     THE
COURT ON 07.02.2024 DELIVERED THE FOLLOWING:
                                        2
Crl.Appeal Nos.1199 of 2007
and 238 of 2008




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
            THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
  WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
                       CRL.APPEAL NO. 238 OF 2008
AGAINST THE JUDGMENT DATED 07.01.2008 SC 210/2005 OF THE
        ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM
  CP 110/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,
                              NORTH PARAVUR
APPELLANT/ACCUSED NO.1:

              JOHNY
              S/O JOSY, AGED 26 YEARS, VALIYAVEEDU,
              PALLIPPURAM KARA, PALLIPPURAM VILLAGE.

              BY ADV SRI.P.M.ZIRAJ


RESPONDENT/COMPLAINANT:

              STATE OF KERALA
              PUBLIC PROSECUTOR, HONOURABLE HIGH COURT OF
              KERALA, ERNAKULAM.

              BY SMT.SEENA C., PUBLIC PROSECUTOR


       THIS     CRIMINAL      APPEAL       HAVING   COME   UP   FOR   FINAL
HEARING ON 31.01.2024, ALONG WITH CRL.A.1199/2007, THE
COURT ON 07.02.2024 DELIVERED THE FOLLOWING:
                                      3
Crl.Appeal Nos.1199 of 2007
and 238 of 2008


                    P.G. AJITHKUMAR, J.
   -----------------------------------------------------------
      Crl.Appeal Nos.1199 of 2007 and 238 of 2008
   -----------------------------------------------------------
          Dated this the 7th day of February, 2024

                               JUDGMENT

The Additional Sessions Judge (Adhoc-I), Ernakulam

convicted and sentenced accused Nos.2 to 5 in S.C.No.210 of

2005 as per the judgment dated 05.06.2007. Accused No.1

was then absconding. He subsequently surrendered before the

court and as per the judgment dated 07.01.2008 he was also

convicted and sentenced. Accused Nos.2, 3 and 5 filed

Crl.Appeal No.1199 of 2007 and accused No.1 filed Crl.Appeal

No.238 of 2008 challenging the respective judgments.

2. The appellants are referred to hereunder as per

their rank in the Sessions Case.

3. The accused were tried on a charge for the

offences punishable under Sections 143, 147, 148, 308, 323,

324, 341, and 506(1) read with Section 149 of the Indian

Penal Code, 1860 (IPC). The allegations against them were

that at 2.30 p.m. on 25.03.2004, they after forming

and 238 of 2008

themselves into an unlawful assembly, in prosecution of their

common object, had wrongfully restrained PWs.1 and 2 on the

way on the western side of the house of PW1. Accused Nos.1

and 2 hit using stones at the nose of PW1. When he fell down,

the 3rd accused beat him with a reaper and accused Nos.4 and

5 fisted and kicked him. When PW2 intervened, he was

threatened by the accused. It was also alleged that the

accused have assaulted and inflicted injuries to the wife and

mother of PW1.

4. The prosecution has examined PWs.1 to 9 and

proved Exts.P1 to P7, besides identifying MOs.1 and 2. The

court below, after appreciating the said evidence, found

accused Nos.1 to 5 guilty of the offences punishable under

Sections 143, 147, 148, 341 and 324 read with Section 149 of

the IPC. They were found not guilty of the offences punishable

under Section 308 and 506 of the IPC.

5. The contentions of the accused was that PWs.1 and

2 were the aggressors and in private defence the accused

prevented them from causing any injury to the accused. They

and 238 of 2008

contended that other than what they were required to do in

their private defence, they did not do anything further. The

court below, however, found on considering the nature of the

injuries sustained by PW1 and that the accused outnumbered

the injured, held that the accused had voluntarily attacked

PW1. The plea of private defence was not accepted. The

accused assail the said findings in these appeals.

6. Heard the learned counsel for the accused and the

learned Public Prosecutor.

7. Going by the case of the prosecution while PW1,

the injured, along with PW2 Laiju was walking along the

pathway on the western side of the house of PW1, the 1 st

accused approached them and hit using a stone at the back of

his head. The 2nd accused by that time hit PW1 at his nose

using a stone. The 3rd accused said to have beat PW1 using a

reaper. Accused Nos.4 and 5 also reached there and fisted and

kicked PW1. He had a further allegation that when the wife

and mother reached the spot, they were also fisted by

accused Nos.4 and 5.

and 238 of 2008

8. PW3 is the wife of PW1. Both PWs.2 and 3 deposed

about the incident. They deposed that besides PW1, PW3 was

also assaulted by accused Nos.4 and 5. They identified both

MO1 stone and MO2 reaper. Although PW4 was examined to

state about the incident, he turned hostile to the prosecution

by stating that he did not see the incident.

9. The evidence of PWs.5 and 6, who are the Doctors

examined PW1, proved the injury sustained by him. PW5

opined that the injuries on the nose could be inflicted by using

MO1 stone and that the injury on the elbow and chest of PW1

could be caused using MO2 reaper. Therefore, the evidence

tendered by these witnesses prove that PW1 sustained

injuries in the incident occurred at about 2.30 pm. on

28.03.2004.

10. It has come out in evidence that SC 777 of 2005

was charged against PWs.1 and 2 with the allegations that

they voluntarily attacked and caused hurt to the accused. It

was alleged that PWs.1 and 2 attacked the accused using an

idikatta. No medical evidence regarding the injuries sustained

and 238 of 2008

by the accused was brought on record, although they

indisputably sustained injuries. The court below considered

the evidence with a view to ascertain as to who were the

aggressors. The reasons stated by the court below to hold

that the accused in furtherance of their common intention

voluntarily attacked PW1 are given in paragraph No.10 of the

judgment, which reads,-

"10. The learned counsel for accused pointed out that PWs.1 and 2 are also accused in the counter case ie., SC. 777/05 in which they sustained injury. Admittedly PWs.1 and 2 are accused for offences under sections 323, 324 read with Section 34 IPC. The main defence of the accused are also that Pws.1 to 3 attacked them with 'Idikaktta' and they sustained injury. It is shown that PW1 was in the hospital with serious injury on his nose for nine days. On the other hand accused are not able to show that they sustained severe injuries. Admittedly only PWs.1 and 2 are accused. Therefore it is clear that the clash was between accused and PW.1 and 2. Since the accused had out numbered PWs. 1 and 2 and PW1 sustained very serious injury warranting admission in the hospital and inpatient for none days. It is clear that the accused are the aggressors. It has come in evidence that Pws.1 and 2 were going their house and PW1 was talking to PW2. On the other hand accused has no necessity to come there. The accused have

and 238 of 2008

come there with the intention of attacking PWs.1 and 2. It is proved that MOs.1 and 2 are used by them and their motive was to attack PWs.1 and 2, consequent upon a civil case in which PW1 filed appeal. Therefore, it can be inferred that the accused formed an unlawful assembly and caused rioting and they caused hurt on PW1 with a dangerous weapon. The point is therefore answered in favour of the prosecution."

11. Admittedly, there was a civil case between the

parties in regard to a pathway, where the incident had

occurred. As regards the injury sustained by PW1 and also

PW2, there are inconsistencies in the evidence. Admittedly,

PW2 is a relative of the injured. Except them, none is

available to speak about the incident. Thus, the evidence of

interested witnesses alone is available and their oral

testimonies are not free of inconsistencies. In such

circumstances, the view taken by the trial court that since the

accused outnumbered the injured, and the injury sustained by

PW1 was more serious compared to the injury sustained by

the accused, the obvious inference is that the accused were