Kerala High Court
Sukrithesh vs State Of Kerala on 13 November, 2024
Crl.Appeal No.224 of 2016
1
2024:KER:84249
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024 / 22ND KARTHIKA,
1946
CRL.A NO. 224 OF 2016
AGAINST THE JUDGMENT DATED 07.01.2016 IN SC NO.1302
OF 2014 ON THE FILE OF THE COURT OF SESSION, KOZHIKODE.
APPELLANT/ACCUSED:
SUKRITHESH,
AGED 30 YEARS,
S/O.KRISHNAN, KUNNIORAMALA HOUSE,
KOLLAM P.O., KOYILANDY, KOZHIKODE.
BY ADVS.
SRI.A.RANJITH NARAYANAN
SMT.A.SIMI
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031,
REPRESENTING THE SUB INSPECTOR OF POLICE,
KOYILANDY, KOZHIKODE.
BY ADV.
SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR (SR.)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
06.11.2024, THE COURT ON 13.11.2024 DELIVERED THE
FOLLOWING:
Crl.Appeal No.224 of 2016
2
2024:KER:84249
C.S.SUDHA, J.
-------------------------------------------------------
Crl.Appeal No.224 of 2016
------------------------------------------------------
Dated this the 13th day of November 2024
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellant, who is the accused in S.C.No.1302/2014 on the file of
the Court of Session, Kozhikode challenges the conviction
entered and sentence passed against him for the offences
punishable under Sections 341 and 326 IPC.
2. The prosecution case is that on 14/03/2014 at
06:00 p.m., the accused due to his enmity towards PW1
wrongfully restrained the latter near the canal bridge situated near
SNDP College, Kollam and voluntarily caused hurt and grievous
hurt to him by beating him with a reaper on his head and left leg
with an intention to commit culpable homicide not amounting to
murder. In the attack, PW1 sustained a fracture on his left ankle.
The accused also abused PW1 by calling him obscene words and
2024:KER:84249
threatened to do away with him. Hence as per the final report, the
accused is alleged to have committed the offences punishable
under Section 341, 326, 308, 294(b) and 506(ii) IPC.
3. On the basis of Ext.P1 FIS of PW1, crime
no.313/2014, Koyilandy police station, that is Ext.P9 FIR was
registered by PW8, Civil Police Officer. PW9, the Sub Inspector
of police conducted the investigation and submitted the final
report/charge sheet alleging the commission of the offences
punishable under the aforementioned sections by the accused
before the jurisdictional magistrate.
4. The jurisdictional magistrate after complying
with all the necessary formalities contemplated under Section 209
Cr.P.C., committed the case to the Court of Session, Kozhikode.
On appearance of the accused before the trial court on
08/07/2015, a charge under Section 341, 326, 308, 506(ii) IPC
was framed, read over and explained to the accused to which he
pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW10
2024:KER:84249
were examined and Exts.P1 to P11 were got marked in support of
the case. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against him in the
evidence of the prosecution. He denied those circumstances and
maintained his innocence. He also submitted that PW1 in an
intoxicated state fell down and sustained the injuries.
6. As the trial court did not find it a fit case to
acquit the accused under Section 232 Cr.P.C., he was asked to
enter on his defence and adduce evidence in support thereof.
DW1(CW5) was examined on behalf of the accused. No
documentary evidence was produced by the accused.
7. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment acquitted the accused under Section 235(1)
Cr.P.C. of the offences punishable under Sections 308, 294(b),
506(ii) IPC. However, he has been found guilty of the offences
punishable under Section 341 and 326 IPC. The accused has been
2024:KER:84249
sentenced to rigorous imprisonment for one year and to a fine of
₹10,000/- and in default, simple imprisonment for one month for
the offence punishable under Section 326 IPC and to simple
imprisonment for one month for the offence punishable under
Section 341 IPC. The sentences have been directed to run
concurrently. The fine amount, if realised, has been directed to be
paid to PW1 as compensation under Section 357(1) Cr.P.C.
Aggrieved, the accused has come up in appeal.
8. The only point that arises for consideration in
this appeal is whether the conviction entered and sentence passed
against the accused by the trial court are sustainable or not.
9. Heard both sides.
10. It was submitted by the learned counsel
appearing for the accused/appellant that the evidence on record is
insufficient and unsatisfactory to prove the offences alleged
against the accused. PW1, a known alcoholic and the accused are
neighbours. There was an altercation between them regarding the
use of obscene language by PW1 against the sister of the accused.
2024:KER:84249
Due to this, the parties were in inimical terms. On the date of the
incident, PW1 under heavy intoxication fell down and sustained
injuries. The present false case has been foisted due to the
previous animosity that existed between PW1 and the accused.
All the independent witnesses examined have turned hostile. The
prosecution relies on the testimony of PW1 and PW2, who are
none other than the injured and the wife. The testimony of PW1
and PW2 are not credit worthy. The testimony of DW1 will
establish the defence case that PW1 sustained injuries in a fall.
In these circumstances, the impugned judgment is liable to be
interfered with.
10.1 Per contra, it was submitted by the learned
public prosecutor that the evidence on record is sufficient and
satisfactory to prove the offences alleged against him and that
there is no infirmity in the impugned judgment calling for an
interference by this Court.
11. PW1, the injured when examined deposed that
on 14/03/2014 at about 06:00 p.m, while on his way home, the
2024:KER:84249
accused wrongfully restrained him and abused him by using
obscene language. The accused with a reaper voluntarily caused
hurt to him by accusing him of being responsible for the failure of
the marriage proposal of his sister. PW1 warded off the attack of
the accused with his hands. The accused again beat him with a
reaper due to which he fell down. The accused beat him with a
reaper on the left leg resulting in a fracture of his left ankle. On
hearing his cries, PW2, his wife and neighbours came running to
the scene of occurrence. They took him to the Taluk Head
Quarters Hospital, Koyilandy from where he was referred to the
Medical College Hospital, Kozhikode. It was while he was in the
hospital the police had recorded Ext.P1 statement.
11.1. PW2, the wife of PW1 supports the case of
PW1, her husband. She deposed that on 14/03/2014 at 06:00
p.m., when she was waiting for her husband in front of her house,
she heard a hue and cry near the bridge situated near her house.
Hearing the commotion, she rushed to the spot and found the
accused attacking her husband with a reaper. She along with the
2024:KER:84249
nearby residents took PW1 to Koyilandy hospital from where he
was referred to the Medical College Hospital, Kozhikode.
11.2. PW4, an independent witness turned hostile and
deposed that he had neither seen the incident nor stated to the
police that he had seen the incident.
11.3. PW10 is the doctor who first treated PW1 at the
Taluk Head Quarters Hospital, Koyilandy. Ext.P11 is the wound
certificate issued by PW10. PW10 deposed that while she
examined PW1, he had complained of pain over left ankle joint
where there was a swelling. She suspected fracture and hence
referred PW1 to the Medical College Hospital, Kozhikode.
11.4. PW5 is another doctor who had examined PW1
and issued Ext.P3 discharge certificate. According to him, Ext.P6
X-ray revealed that PW1 had sustained bimolicular fracture on his
left ankle and there was also contusion on the chest wall. Ext.P3
reveals that PW1 had been referred to the Medical College
Hospital from the Taluk Hospital, Koyilandy. Ext.P4 is the
reference card and Ext.P5 series are the O.P tickets.
2024:KER:84249
11.5. PW7, another independent witness deposed that
he had taken PW1 to the hospital after the incident. According to
him, he heard a hue and cry while he was at his residence and
when he rushed to the spot, he found PW1 in an injured
condition. PW1 told him that it was the accused who had
attacked him.
11.6. PW8, the Senior Civil Police Officer, Koyilandy
police station had recorded Ext.P1 FIS of PW1, registered the
crime and prepared Ext.P9 FIR.
11.7. PW9 is the Sub Inspector of Police, Koyilandy,
who had conducted the investigation and had submitted the final
report on completion of the investigation.
12. DW1, a neighbour, was examined by the
accused to prove his defence case that the accused had sustained
the injuries by a fall. DW1 deposed that PW1 was in the habit of
consuming liquor and that he had fallen down and sustained
injuries. DW1 admitted that the marriage proposal of the sister of
the accused had failed to materialise.
2024:KER:84249
13. The testimony of PW1 and PW2 along with the
medical evidence clearly establishes that PW1 did sustain
grievous injury in the incident. Now the question is whether it
was the accused who had caused the said injuries. Though PW1
and PW2 were extensively cross examined, nothing was brought
out to disbelieve or discredit their testimony. Hence I find no
reasons to disbelieve their testimony. It is true that PW1 is the
injured and PW2 is his wife. There are no independent witnesses
to support the prosecution case. Merely because there are no
independent witnesses to prove the prosecution case is no ground
to throw out the prosecution case or disbelieve the prosecution
case.
14. The medical evidence on record clearly shows
that PW1 had sustained a fracture. The weapon used for
assaulting and causing injuries to PW1, that is, a reaper was not
recovered by the police. In the absence of the weapon before the
court, its length, breadth etc., cannot be ascertained to decide
whether it was a dangerous weapon as contemplated under
2024:KER:84249
Section 326 IPC. Therefore, the finding of the court that the
weapon that was used was infact a dangerous weapon as
contemplated under Section 326 IPC is not correct and hence the
same is liable to be interfered with. However, the evidence on
record clearly establishes the offences punishable under Section
325 and 341 IPC.
15. Now coming to the sentence to be imposed on
the accused. According to the trial court, the facts and
circumstances indicated that the incident took place at the spur of
the moment and the accused being a first offender, deserved
leniency. Hence sentence of rigorous imprisonment for one year
for the offence punishable under Section 326 IPC and simple
imprisonment for one month for the offence punishable under
Section 341 IPC was imposed. The learned counsel for the
accused/appellant submitted that the accused has no criminal
antecedents and that he was only 28 years at the time of the
incident and therefore a lenient view may be taken.
16. The accused has no criminal antecedents. He is
2024:KER:84249
a first offender. He was only 28 years at the time of the
commission of the offence in the year 2014. Ten years have
elapsed. At this stage, no purpose would be served by sending the
accused to jail. As noticed by the trial court, it appears that the
incident took place at the spur of the moment as the accused was
under the impression that PW1 had spread rumors against his
sister which resulted in the failure of a marriage proposal. This
seems to have prompted the accused to assault PW1. I hasten to
add that this Court is in no way justifying the attack of PW1 by
the accused. But taking into account the facts and circumstances
of the case and the fact that the accused has no criminal
antecedents, I feel the ends of justice would be served by
modifying the sentence that has been imposed in the following
manner -
(i) The conviction of the accused for the
offences punishable under Sections 341 and 325
IPC is confirmed.
(ii) The accused is sentenced to
2024:KER:84249
imprisonment for a day till the rising of the court
for the offences punishable under Sections 341
and 325 IPC.
(iii) He is directed to pay compensation of ₹30,000/-
(thirty thousand rupees) under Section 357(3) Cr.P.C. to
PW1 and in default of payment, he shall undergo
imprisonment for a period of four months.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
