Kerala High Court
Gopalan vs State Of Kerala on 29 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 29TH DAY OF FEBRUARY 2024/10TH PHALGUNA, 1945
CRL.APPEAL NO. 834 OF 2007
AGAINST THE JUDGMENT DATED 14.05.2007 IN SC NO.26 OF 2004
OF THE ADDITIONAL SESSIONS COURT (ADHOC)-I,
PATHANAMTHITTA
APPELLANTS/ACCUSED 1 TO 3:
1 GOPALAN
S/O KRISHNAN, PULINIKUNNAKALAYIL VEEDU,
ANTHYALANKAVU MURI, CHERUKOL
VILLAGE,KOZHENCHERRY TALUK.
2 CHANDRAN, S/O.KRISHNAN
PULINIKUNNAKALAYIL VEEDU, ANTHYALANKAVU MURI,
CHERUKOL VILLAGE, KOZHENCHERRY TALUK.
3 SANTHOSH, S/O.AYYAPPAN
PARAYIL VEEDU, NARANGANAM MURI, NARANGANAM
VILLAGE, KOZHENCHERRY TALUK.
BY ADV SRI.PHILIP M.VARUGHESE
RESPONDENT/COMPLAINANT:
STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
SMT.SEENA C., PUBLIC PROSECUTOR
-2-
Crl.Appeal No.834 of 2007
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING
ON 09.02.2024, THE COURT ON 29.02.2024 DELIVERED THE
FOLLOWING:
-3-
Crl.Appeal No.834 of 2007
P.G. AJITHKUMAR, J.
--------------------------------------------------------
Crl. Appeal No. 834 of 2007
--------------------------------------------------------
Dated this the 29th day of February, 2024
JUDGMENT
Accused Nos.1 to 3 in S.C.No.26 of 2004 before the
Additional Sessions Judge (Adhoc)-I, Pathanamthitta are the
appellants. They were convicted for the offences under Sections
324 and 326 read with Section 34 of the Indian Penal Code, 1860
(IPC). They were sentenced to undergo rigorous imprisonment for
a period of two years and to pay a fine of Rs.3,500/- each under
Section 324 and to undergo rigorous imprisonment for a period of
four years and to pay fine of Rs.20,000/- each under Section 326
of the IPC. The said judgment is under challenge in this appeal
filed under Section 374(2) of the Code of Criminal Procedure,
1973 (Code).
2. The case of the prosecution was the following:
At about 9.30 p.m. on 11.12.2002 PW1 Somasekharan Nair was
returning to his house from his Tharavad house along
Kanamukku-Andhyalankavu Road. When he reached Kanamukku,
accused Nos.1 to 4 were waiting there. The 1 st accused uttering
that why did he file a case against the 1st accused, he hit at the
head of PW1 using a stone. When he fell down, the 2 nd accused
beat him using an iron pipe at his left hand and also at both of his
legs. The 3rd accused stabbed him using a knife at left shoulder.
PW1, as a result of that attack, sustained grievous hurt. It was an
attempt on his life.
3. At the trial, Pws.1 to 11 were examined and Exts.P1 to
P9 were marked. During Section 313 examination the accused
maintained that they were innocent. The trial court after hearing
both sides, found accused Nos.1 to 3, the appellants herein,
guilty for the offences punishable under Sections 324 and 326
read with Section 34 of the IPC. Although charged, they were not
found guilty of the offence under Section 308 of the IPC. Accused
Nos.4 was acquitted. The appellants assail the findings of the trial
court as wrong and illegal.
4. Heard the learned counsel for the appellants and the
learned Public Prosecutor.
5. PW1, the injured, alone deposed regarding the
incident. PWs.2, 3 and 6 were cited and examined as occurrence
witnesses. But they denied having witnessed the incident. It was
PW6 Thankappan Nair along with father of PW1, who took the
injured to the hospital. Dr.Koshy examined and treated PW1.
Exts.P2 and P3 are the treatment and wound certificate of PW1.
Although Dr.Koshy, who examined PW1, was not examined, the
certificate issued by him was duly proved through PW4 Dr.Ajith
C.George. From their evidence and Exts.P2 and P3, injuries
sustained by PW1 have been duly proved. He sustained grievous
hurt, inasmuch as the injuries sustained by him includes fracture
of bone of the left hand and both legs. From the oral testimony of
PW1 and the evidence tendered by PW4, it is proved that PW1
had sustained such grievous hurt as a consequence of his
manhandling at about 9.30 p.m. on 11.12.2002.
6. When Pws.2, 3 and 5 failed to state anything about the
assault on PW1 by the appellants, the evidence that can be
depended upon by the prosecution is that of PW1 alone. Of
course, PW6 stated that on hearing hue and cry he reached the
spot to find PW1 with injuries and he along with the father of PW1
took him in a jeep to the hospital. PW6 did not see the incident or
the assailants. From the evidence of PW6, it can be seen that the
incident took place near to his house and PW1 had serious
injuries. It was at about 9.30 p.m. on 11.12.2002. The question
therefore is whether the evidence of PW1 coupled with Ext.P1
F.I.Statement would prove that the appellants were the
assailants.
7. The overt act of the appellants/accused Nos.1 to 3
stated by PW1 are cogent. The 1 st appellant hit at his forehead
using a stone. The 2nd appellant beat him using an iron pipe on
his left hand and both legs, resulting in fracture of bones and the
3rd appellant inflicted a cut injury using a knife at his right
shoulder. As regards the aforesaid overt acts stated in Ext.P1 FIS
is also the same. Of course, his version implicating the 4 th
accused Vasu had not been cogent and consistent. Taking that
into account, the trial court found the 4 th accused not guilty. The
learned counsel for the appellants would submit that in the light
of that inconsistency in the evidence of PW1, he cannot be
believed, especially in the absence of any independent
corroboration.
8. In Ext.P1 statement, the version of PW1 concerning
the attacks perpetrated by the appellants is the same. The
appellants are persons familiar to PW1. They are neighbours.
While undergoing treatment in the hospital at about 4.15 p.m. on
13.12.2002, Ext.P1 statement was recorded from PW1. There was
a delay of two days. It has come out that not on the basis of the
information sent from the hospital, but consequent to the
information passed on by his father, PW8, Head Constable, who
came to the hospital and recorded the statement of PW1.
Therefore, the said delay would not affect the credibility of the
prosecution case. Involvement of the 4 th accused-Vasu was
obviously stated inadvertently by PW1. When the oral testimony
of PW1 in court regarding the complicity of the appellants is quite
corresponding to what has been stated in Ext.P1, I find no reason
to disbelieve him in that regard.
9. The learned counsel for the appellants would submit
that regarding the place of occurrence and availability of light the
evidence is not consistent and that necessarily fail the
prosecution. From the very beginning, the stand of PW1 has been
that the incident occurred at the road in front of the house of
Thankappan Nair, PW6. Hearing the cry, PW6 reached there
immediately. By that time, the assailants left the scene, but in the
light of evidence of PW1 and PW6, there cannot be any doubt
about the place of occurrence. The place has been duly located by
PW9. Ext.P4 scene mahazar contains a vivid description regarding
the place.
10. PW1 asserted that electric light from the house of
Thankappan Nair and moon light were available to identify the
assailants. Availability of electric light in the house of Thankappan
Nair is established. While PW1 was walking along the road, he
could be approached and attacked by three persons without any
mistake. There is nothing to show that any of the assailants
sustained an injury. When the assailants could perpetrate such
kind of attack with precision, the availability of light to identify
the assailants by PW1 cannot be doubted. The version of PW1 in
that regard is therefore quite believable. Especially when the
appellants were persons familiar to PW1, his identification of the
appellants need not be doubted at all.
11. In the light of the aforesaid evidence, the trial court
arrived at a conclusion that the appellants had attacked and
inflicted injuries to PW1 using weapons. The said finding is devoid
of any infirmity.
12. Regarding the motive, the evidence available is that of
PW1 alone. His assertion that he lodged a complaint against the
1st appellant in police is not successfully cross-examined. So, the
motive alleged cannot be doubted. From the narration by PW1
about the weapons and the nature of injuries inflicted, it is certain
that the weapons used by the appellants are dangerous ones. The
above discussion follows that appellants 1 to 3 voluntarily had
attacked PW1 and caused him grievous hurt using dangerous
weapons. Their conviction for the offence punishable under
Sections 324 and 326 read with Section 34 of the IPC is not liable
to be interfered with.
13. The sentence imposed, in the nature and
circumstances of the case, appears to be excessive. Moreover,
having such a long time lapsed after the incident, the appellants
are entitled for leniency. Sentence is therefore modified and
each of the appellants is sentenced to undergo rigorous
imprisonment for a period of one year and to pay a fine of
Rs.3,500/- for the offence punishable under Section 324 and to
undergo rigorous imprisonment for a period of two years and to
pay fine of Rs.20,000/- for the offence punishable under Section
326 of the IPC. The default sentence shall be the same. The
terms of the substantive sentence shall run concurrently. Set off
is allowed.
The appeal is allowed to the above extent. The appellants
shall surrender before the trial court within one month to undergo
sentence.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
