Kerala High Court

Ayub @ Dani vs State Of Kerala on 7 June, 2024

Crl. Appeal No 735/2008           :1:




                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                  THE HONOURABLE MR. JUSTICE JOHNSON JOHN
          FRIDAY, THE 7TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946
                           CRL.A NO. 735 OF 2008
JUDGMENT DATED 14.03.2008 IN SC NO.38 OF 2007 OF ADDITIONAL SESSIONS
COURT (ADHOC)-II, MANJERI

APPELLANT/ACCUSED:

             AYUB @ DANI, S/O. CHERIYA BAVA,
             PAKEECHINTE PURACKAL, CHEERAN, KADAPPURAM, RAYIRAMUNGALAM
             AMSOM, DESOM

             BY ADV SRI.JOSEPH SEBASTIAN PURAYIDAM



RESPONDENTS/STATE:

             STATE OF KERALA, REPRESENTED BY THE
             PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM




             SRI. VIPIN NARAYAN - SR. PUBLIC PROSECUTOR




       THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.06.2024, THE

      COURT ON 07.06.2024 DELIVERED THE FOLLOWING:
 Crl. Appeal No 735/2008            :2:




                                                                 'CR'
                              JOHNSON JOHN, J.
            ---------------------------------------------------------
                         Crl. Appeal No. 735 of 2008
             --------------------------------------------------------
                            Dated this the 7th day of June, 2024.

                                  JUDGMENT

The appellant is the accused in S.C. No. 38 of 2007 on the file of

the Additional District and Sessions Judge, Adhoc No.II Manjeri and he is

challenging the conviction and sentence imposed on him for the offences

under Sections 324 and 308 IPC.

2. The prosecution case is that because of previous enmity, the

accused assaulted PW1 with iron pipe and knife on 25.11.2005, at about

6 p.m., while PW1 was engaged in the sale of lemon on the side of the

road near Tanur Railway Station. The accused beat PW1 with an iron

pipe on his head and thereafter, assaulted him with a knife aiming his

neck and when PW1 flinched, he sustained injuries on his left hand and

right side of the abdomen. It is alleged that the accused also beat PW1

on his right leg and back with the iron pipe and that the accused

committed the act with the requisite intention or knowledge to cause

culpable homicide, not amounting to murder.

3. On the basis of Exhibit P1, First Information Statement of PW1,

Exhibit P8 FIR was registered by PW7 on 26.11.2005 and after Crl. Appeal No 735/2008 :3:

completing the investigation, PW9, Assistant Sub Inspector of Tanur

Police Station, filed the final report and after committal, when the

accused appeared before the trial court, charge was framed for the

offences under Sections 324 and 308 of IPC and when the charge was

read over and explained, the accused pleaded not guilty.

4. Thereafter, the prosecution examined PWs 1 to 9 and marked

Exhibits P1 to P8 and MOs I and II. No evidence was adduced from the

side of the accused.

5. After hearing both sides and considering the oral and

documentary evidence on record, the learned Additional Sessions Judge,

as per the impugned judgment dated 14.03.2008, convicted and

sentenced the accused to undergo simple imprisonment for 3 years

under Section 308 IPC and simple imprisonment for one year and to pay

a fine of Rs.1000/- and in default of payment of fine, to undergo simple

imprisonment for a further period of 3 months for the offence under

Section 324 IPC.

6. Heard Sri. Joseph Sebastian Purayidam, the learned counsel for

the appellant and the learned Senior Public Prosecutor, Sri. Vipin

Narayan and perused the records.

7. The learned counsel for the appellant argued that the trial court

has not appreciated the evidence in the correct perspective and that Crl. Appeal No 735/2008 :4:

there are serious contradictions and omissions in the evidence of PWs 1

and 2 and therefore, the accused is entitled for the benefit of reasonable

doubt.

8. But, the learned Public Prosecutor argued that PW1 is the

injured witness and PW2 is an independent witness and their evidence

regarding the occurrence is supported by medical evidence and that the

prosecution has established the charge against the accused beyond

reasonable doubt.

9. The de facto complainant, when examined as PW1, deposed

that he was conducting sale of lemon in a goods vehicle on the side of

the road at about 6 p.m. on 25.11.2005 and then the accused Ayub,

who came from behind, beat him with an iron pipe on the back side of

his head by saying that he will kill him. According to PW1, when he

turned back, the accused took out a knife and swung the knife aiming

his neck and when he flinched, the knife caused to hit on his hand and

he sustained injuries. PW1 stated that if he had not flinched, the assault

with the knife aiming his neck would have caused his death. PW1 stated

that the accused also beat on his legs and back with the iron pipe and

when he fell down, the accused ran away.

10.. According to PW1, one Sameer took him to Janatha Hospital

and from there, he was taken to Medical College Hospital, Kozhikode and Crl. Appeal No 735/2008 :5:

on the next day, he was again admitted in Janatha Hospital. PW1

identified his signature in Exhibit P1, First Information Statement, and

also deposed that the accused was having enmity towards him for the

reason that the accused was not allowed to marry his sister. According

to PW1, the accused used to disturb his sister while she was studying in

the 10th standard and subsequently, he demanded to marry her. But,

they turned down the proposal as the accused was involved in many

cases and because of that, previously some verbal altercations occurred.

PW1 identified MO1, iron pipe, and MO2, knife, used by the accused to

attack him. The OP ticket and scan report of PW1 from Medical College

Hospital are marked as Exhibits P2 and P3.

11. PW2 deposed that the accused and PW1 are known to him

and he witnessed the occurrence in which PW1 sustained the injuries.

According to PW2, on the date of occurrence, while he was standing near

the Milma booth, on the side of Tanur Railway Station road, PW1 was

conducting sale of lemon there in his goods vehicle and at that time, the

accused who came there from the western side, attacked PW1 from

behind by saying that he will kill him and beat him on the back of his

head with an iron pipe and when the pipe fell down from the hands of

the accused, he took out a knife and swung the same against PW1

aiming his neck and the knife caused to hit both hands of PW1.

According to PW2, when he approached the accused, he pointed the Crl. Appeal No 735/2008 :6:

knife towards him and hence, he moved back and then the accused took

the iron pipe and again beat PW1 and thereafter, the accused ran away

with the knife and iron pipe. PW2 also identified MO1, iron pipe, and

MO2, knife, before the court.

12. PW3 is the father of PW1 and he is not a witness to the

occurrence. However, he deposed regarding the alleged motive.

According to PW3, the accused used to disturb his daughter and that

when the marriage of his daughter was fixed with one Yousuf, due to the

intervention of the accused, the said marriage was cancelled and

subsequently, he filed a complaint against the accused before the police

and later, the matter was settled due to the intervention of the

Panchayat President. But, even after that, the accused used to reach

their house to disturb them. PW4 is a witness to Exhibit P4, scene

mahazar and PW5 is a witness to Exhibit P5, seizure mahazar. PW6 is

the doctor who examined PW1 in Janatha Hospital, Tanur and issued

Exhibit P7 wound certificate noting the following injuries:

1. Lacerated wound on the right mastoid 3 x 1 cm

2. Swelling present over the right mastoid region and neck

3. Tenderness and contusion present over the right side of chest and right thigh.

13. The evidence of PW6 shows that the alleged cause was assault

and his opinion is that the injuries can be caused as alleged. PW6 also Crl. Appeal No 735/2008 :7:

deposed that the injuries noted in Exhibit P7 could be caused by using

MOs 1 and 2. In cross examination, PW6 stated that the possibility of

causing the injuries noted in Exhibit P7 in a road accident is remote.

14. The learned counsel for the appellant argued that the

evidence of PW1 would show that he was taken to the hospital by one

Sameer and the prosecution has not examined the said Sameer as a

witness and therefore, there is suppression of material evidence.

However, it is pertinent to note that while cross examining PW9, who

conducted the investigation and filed the final report, no question was

put regarding Sameer who took the injured to the hospital and there was

also no suggestion that the non-examination of the said witness has

caused prejudice to the accused. The learned Public Prosecutor pointed

out that there is nothing in the evidence of PWs 1 and 2 to show that the

said Sammer has witnessed the actual occurrence in this case and in

that circumstance, I find that the non-examination of the said Sameer

has not caused any prejudice to the accused as there is nothing in

evidence to show that he is a material witness.

15. The learned counsel for the appellant argued that there are

serious contradictions and omissions in the evidence of PWs 1 and 2 and

therefore, their evidence is not reliable. In cross examination, PW1

stated that he is conducting sale of lemon in a goods auto rickshaw and Crl. Appeal No 735/2008 :8:

that the incident occurred at Tanoor Angadi junction and that people

used to gather near his goods auto rickshaw while conducting sale of

lemon. According to PW1, before he turned back on hearing the

utterance of the accused that he will kill him, the accused beat him and

he denied the suggestion that the accused beat him after he turned back

on hearing the utterance of the accused. PW1 would say that the

accused beat him simultaneously by uttering that he will kill him and

when the iron rod fell down from the hands of the accused, he took out

the knife and swung the same aiming his neck. According to PW1, when

the accused swung the knife, he used both hands to cover his head and

evaded the attack and then he sustained injuries on both hands.

16. In cross examination, PW2 stated that there occurred no

verbal altercation between the accused and PW1 and that he was

present at the place of occurrence. According to PW2, the accused beat

on the back of the head of PW1 by uttering that he will kill him. PW2

would say that even after PW1 fell down, the accused beat him. But, the

witness cannot say as to how many times the accused beat PW1. It is

well settled that when eyewitnesses are examined at length, it is quite

possible for them to make some discrepancies and only when the

discrepancies in the evidence of witnesses are so incompatible with the

credibility of their version, the court will be justified in disbelieving their

evidence.

Crl. Appeal No 735/2008 :9:

17. It cannot be disputed that normal discrepancies in evidence

are those which are due to normal errors of observations and normal

errors of memory due to lapse of time and such discrepancies and errors

will always be there, however honest and truthful a witness may be.

Ordinarily, a witness cannot be expected to recall accurately the

sequence of events which takes place in rapid succession or in a short

span of time.

18. In Tahsildar Singh and another v. State of UP [AIR 1959

SC 1012], the Honourable Supreme Court held that the procedure

prescribed for contradicting a witness by his previous statement is that if

it is intended to contradict him by the writing, his attention must, before

the writing can be proved, be called to those parts of it, which are to be

used for the purpose of contradicting him. In the said decision, it was

also held that the contradiction should be between what a witness asserted in

the witness-box and what he stated before the police-officer, and not between what

he said he had stated before the police officer and what he actually made before

him.

19. The proviso to Section 162 of Cr.P.C only enables the

accused to make use of such statement to contradict a witness in the

manner provided by Section 145 of the Indian Evidence Act. In this case,

no portion of the previous statement was specifically brought to the

attention of PWs 1 and 2 while cross examining them and no portion of Crl. Appeal No 735/2008 : 10 :

their previous statement is proved legally to contradict them. In that

circumstance, I find no material contradiction or omission amounting to

contradiction in the evidence of PWs 1 and 2 and that their evidence

regarding the occurrence is reliable and trustworthy and further, their

evidence is also supported by clear medical evidence.

20. It is also well settled that the evidence of the injured witness

has greater evidential value and unless compelling reasons exist, their

statements are not to be discarded lightly. In Balu Sudam Khalde and

another v. State of Maharashtra [2023 Livelaw (SC) 279], the

Honourable Supreme Court held that the following legal principles are

required to be kept in mind, while appreciating the evidence of an

injured witness:

"(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.

(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.

(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.

(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.

Crl. Appeal No 735/2008 : 11 :

(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.

(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."

21. The learned counsel for the appellant argued that the injuries

noted in Exhibit P7, wound certificate, are not grievous injuries and

there is no satisfactory evidence to show that the accused committed the

act with the required intention or knowledge to attract the offence under

Section 308 of IPC. But the learned Public Prosecutor pointed out that

the evidence of PWs 1 and 2 would clearly show that the accused

committed the act with the required intention and knowledge. An

attempt is an intentional preparatory action which fails in its object and

therefore, the question is whether the act, irrespective of its result, was

done with the intention or knowledge and under circumstances that, if

he by that act caused death, he would be guilty of culpable homicide not

amounting to murder.

22. On a careful re appreciation of the evidence of PWs 1 and 2

regarding the occurrence and the nature of injuries in Exhibit P7 wound

certificate and the weapons used by the accused, I find that the

prosecution has succeeded in proving beyond reasonable doubt that the Crl. Appeal No 735/2008 : 12 :

accused committed the act with the required intention and knowledge

and therefore, I find that the trial court rightly convicted the accused for

the offences under Sections 324 and 308 IPC and since the trial court

has already taken a lenient view in the matter of sentence, there is also

no reason to interfere with the sentence imposed by the trial court.

In the result, this appeal is dismissed confirming the conviction

entered and the sentence passed by the learned Additional Sessions

Judge in S. C. No. 38 of 2007. Interlocutory applications, if any

pending, shall stand closed.