Kerala High Court
Suresh @ Naya Sura vs State Of Kerala on 11 September, 2024
1
Crl.Appeal No.19 of 2016
2024:KER:68905
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024 / 20TH BHADRA, 1946
CRL.A NO. 19 OF 2016
AGAINST THE JUDGMENT DATED IN SC NO.759 OF 2012 ON THE
FILE OF THE COURT OF SESSION, PALAKKAD
(CP NO.48 OF 2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-II,PALAKKAD
CRIME NO.766/2012 OF TOWN NORTH POLICE STATION,PALAKKAD)
APPELLANTS/ACCUSED NOS.1,3 AND 4:
1 SURESH @ NAYA SURA
S/O. RAJAN, AGED 29 YEARS, SREE RAM STREET,
VADAKKANTHARA P.O., PALAKKAD.
2 VISHNU @ KAKKA VISHNU
AGED 25 YEARS, S/O. RAJAN, ARAYAKULAM, MOOTHANTHARA,
VADAKKANTHARA P.O., PALAKKAD.
3 AYYAPPAN @ UNNIKRISHNAN, AGED 25 YEARS
S/O. MANI, SIVAJI ROAD, MOOTHANTHARA,
VADAKKANTHARA P.O., PALAKKAD.
BY ADVS. SRI.SAJAN VARGHEESE K.
SAJAN VARGHESE M.
SRI.LIJU. M.P
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE SUB INSPECTOR OF POLICE, TOWN NORTH
POLICE STATION, PALAKKAD, REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
2.9.2024, THE COURT ON 11.09.2024 DELIVERED THE FOLLOWING :
2
Crl.Appeal No.19 of 2016
2024:KER:68905
C.S.SUDHA, J.
----------------------------------
Crl.Appeal No.19 of 2016
---------------------------------------
Dated this the 11th day of September 2024
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C, the
appellants who are accused nos.1, 3 and 4 in S.C.No.759/2012 on the
file of the Court of Session, Palakkad, challenges the conviction
entered and sentence passed against them for the offences punishable
under Sections 341, 326 and 427 read with Section 34 IPC.
2. The prosecution case as stated in the final
report/charge sheet is - PW1 and the first accused (A1) were earlier
friends. But later on, they fell out and due to this enmity, accused
nos.1 to 4 (A1 to A4) with the intention of causing the death of PW1,
on 19/04/2012 at 12:30 a.m. arrived at the scene of occurrence in
motor cycles and autorickshaws armed with swords. A1 exhorted the
other accused to kill PW1 (വ ട വ വ ട ) and then A1 wrongly
2024:KER:68905
restrained PW1 by holding him by his neck and with MO.1 sword
hacked him on his forehead ; lips and both legs causing grievous
injuries. A2 to A4 who were also armed with swords, hacked CW1
on his legs; back; thighs and on various parts of his body. Thus, the
accused are alleged to have committed the offences punishable under
Sections 341, 324, 427 and 307 read with Section 34 IPC.
3. PW2, a friend of PW1 and eye-witness gave Ext.P1
FIS on 19/04/2012 at 15:00 hrs to PW12, a senior civil police officer,
North Police Station, Palakkad, on the basis of which crime
no.766/2012, North Police Station, Palakkad, that is, Ext.P5 FIR was
registered by CW14. PW10, the then Circle Inspector, Town North
Police Station, conducted the investigation and submitted the final
report against the accused persons before the jurisdictional magistrate,
who after complying with the legal formalities, committed the case to
the Court of Session, Palakkad. The case was thereafter made over to
the Additional District and Sessions Judge-III for trial and disposal.
4. On appearance of the accused persons before the
2024:KER:68905
trial court, copies of all the prosecution records were given to them.
On 20/08/2014 a charge under Sections 341, 324, 427 and 307 read
with Section 34 IPC was framed, read over and explained to the
accused to which they pleaded not guilty. During the pendency of the
trial, A2 died and hence the charge against him stood abated.
5. On behalf of the prosecution, PW1 to PW14 were
examined, Exts.P1 to P15 and MO.1 and MO.II series were got
marked in support of the case. After the close of the prosecution
evidence, the accused were questioned under Section 313(1)(b)
Cr.P.C. with regard to the incriminating circumstances appearing
against them in the evidence of the prosecution. All the accused
persons denied those circumstances and maintained their innocence.
6. As the trial Court did not find it a fit case to acquit the
accused under Section 232 Cr.P.C., they were asked to enter on their
defence and adduce evidence in support thereof. No oral or
documentary evidence was adduced on behalf of the accused.
2024:KER:68905
7. On a consideration of the oral and documentary evidence
and after hearing both sides, the trial court by the impugned judgment
found the accused guilty for the offences punishable under Sections
341, 326 and 427 read with Section 34 IPC. They have been
acquitted under Section 235(1) Cr.P.C. for the offence punishable
under Section 307 read with Section 34 IPC. The accused have been
sentenced to a fine of ₹500/- each and in default of payment of fine to
undergo simple imprisonment for 7 days each for the offence
punishable under Section 341 read with Section 34 IPC; to rigorous
imprisonment for 3 years each and to a fine of ₹10,000/- each and in
default to rigorous imprisonment for 3 months each for the offence
punishable under Section 326 read with Section 34 IPC and to
rigorous imprisonment for 6 months each and to a fine of ₹2,000/-
each and in default to rigorous imprisonment for one month each for
the offence punishable under Section 427 read with Section 34 IPC.
The substantive sentences have been directed to run concurrently. Set
off has also been allowed. Aggrieved, A1, A3 and A4 have come up
2024:KER:68905
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. The prosecution relies on the testimony of PW7;
PW14; Ext.P3 wound certificate and Ext.P9 discharge certificate to
prove that PW1 had sustained injuries in the incident. PW7, Surgeon,
Welcare hospital, Palakkad, deposed that on 19/04/2012 at 12:30 a.m.
he had examined Subash (PW1) who was brought to the hospital with
a history of alleged assault. On examination there was smell of
alcohol present. Multiple lacerated wounds were seen on back of his
right thigh; gluteal region and left knee joint. All the wounds were
bleeding. The wound certificate issued by him has been marked as
Ext.P3. In the cross examination he deposed that the patient was
conscious when he examined him ; that he does not remember
2024:KER:68905
whether the history had been narrated by the patient himself ; that the
nature of weapon had not been disclosed to him and that all the
injuries except one were on the back side of PW1.
10.1. PW14, the then junior resident, Medical College
Hospital, Thrissur, deposed that on 15/06/2012 he had issued Ext.P9
discharge certificate. PW1 had been admitted in the hospital on
19/04/2012 as an inpatient and was discharged on 26/04/2012. X-ray
and other investigation showed fracture of his nasal bone. PW1 had
multiple incised wounds on his back; abdomen; bilateral thighs;
gluteal region; behind left knee and leg as well as injuries to knee
joint. He also deposed that the multiple incised wounds seen on the
back; abdomen; bilateral thigh; gluteal region, behind the left knee
and leg could be caused by assault with a sword. In the cross
examination he deposed that he had issued Ext. P9 on the basis of the
records maintained in the hospital. When PW14 was asked whether
the injuries noted in Ext.P9 were on any vital part of the body, he
answered that the fracture on the nasal bone was a grievous injury;
2024:KER:68905
that it is a vital part of the body and that the other injuries were not on
the vital parts. The testimony of PW7 and PW14 which is not
disputed or discredited as well as Exts.P3 and P9 proves the
prosecution case that PW1 had infact sustained grievous as well as
other injuries on 19/04/2012.
11. It was submitted by the learned counsel for the
accused/ appellants that the evidence on record is totally
unsatisfactory to prove the guilt of the accused persons beyond
reasonable doubt. The testimony of the prosecution witnesses suffer
from material inconsistencies and omissions. Though PW1, the
injured, has a case that all the accused persons had attacked him with
swords and injured him, PW2 who is alleged to have been present all
along with him, has no such case. Further, though all the accused are
alleged to have been armed with swords, only MO.1 sword alleged to
have been used by A1 has been seized. PW1 has no case that the
accused had attacked him on his nose. Therefore, fracture to the nasal
bone was not caused by the alleged assault and hence the offence
2024:KER:68905
under Section 326 IPC is not made out. If at all any offence is made
out from the materials on record, it can only be the offence punishable
under Section 324 IPC. Per contra, it was submitted by the learned
Public Prosecutor that the evidence on record is more than sufficient
to prove the offences alleged against the accused. Discrepancies and
omissions pointed out are only minor ones, which have not gone to
the root of the prosecution case. Therefore, the submission is that no
interference is called for.
12. Ext.P1 FIS given by PW2, a friend and eye witness
of PW1, the injured, on 19/04/2012 at 15 hrs was recorded by PW12
at the Thrissur Medical College Hospital. In Ext.P1 FIS, PW2 says
that on 19/04/2012, at about 12:30 a.m. while he was standing near
the Ganapathy Temple near Geetham bakery, Melemuri, he saw the
autorikshaw of PW1 parked near the temple. He saw A1 to A4
armed with big swords coming and pushing down the autorikshaw.
Naya Sura (A1) held PW1 by his neck and hacked him on his
forehead with a sword. PW1 cried out and fell on the road. At this
2024:KER:68905
juncture, Jacky Vinod (A2); Kakka Vishnu (A3) and Ayyappan (A4)
hacked PW1 on different parts of his body with the swords in their
possession. They hacked him on his back ; both legs and buttock
portion. People gathered at the scene. PW1 took to his heels to
escape the attack. The accused chased him. PW1 fell down when he
reached in front of Bhajanamadam. Then PW2 along with his friend
Dileesh (PW3) took PW1 in an authorickshaw to Welcare Hospital.
The injuries were quite serious and therefore he was taken to Paalana
Hospital from where he was directed to be taken to the hospital at
Thrissur. Naya Sura (A1) who had exhorted others to kill PW1, had
attacked the latter on his forehead. PW1 and A1 were earlier friends.
Later on, they fell off due to some reasons. Due to the said enemity,
the accused with the intention of murdering PW1, attacked him with
swords on various part of his body. There was street light at the time
of the incident and hence he was able to identify the accused persons.
12.1. PW1, the injured, when examined deposed that on
18/04/2012 at about midnight after having food, he was coming
2024:KER:68905
towards his autorikshaw parked by the side of the road. A1 and A3
came in motorcycles and A2 and A4 in an autorikshaw. As soon as
they arrived at the scene of occurrence armed with swords, they
damaged his autorikshaw and smashed the windshield. Then all the
accused approached him and A1 swung the sword towards his face.
He sustained an injury on his neck and shoulders. A3 with a sword
hacked him on his leg and back. Thereafter all the accused hacked
him with swords all over his body. He got up and ran towards the
Bhajanamadam. However, the accused chased him and then dropped
mud blocks on him. When people gathered hearing his cries, all the
accused persons ran away. Initially, he was taken to the Welcare
Hospital. As injuries were serious, he was taken to Paalana Hospital
from where he was taken to the Medical College Hospital, Thrissur,
where he was admitted. He sustained injuries on his body, back,
thigh, left leg, nose and forehead. Accused are his acquaintances and
residents of his locality. Street lights was there during the incident.
PW1 identified MO.1 sword and MO.II series glass pieces of the
2024:KER:68905
windshield of his autorickshaw. PW1 also deposed that earlier, he
and the accused persons were friends. Later on, they fell out. This
led to enemity and he was attacked six months after the fall out.
12.2. PW2, the first informant, deposed that on the date
of the incident, he was present along with PW1, his friend. After
having supper, when they reached near the autorickshaw of PW1
which was parked by the side of the road, they saw that the vehicle
had been turned turtle and the windshield broken. Immediately, A1
and others attacked PW1. A1 hacked PW1 with a sword. PW1 ran
towards the Bhajanamadam. All the accused persons followed him.
He then immediately called PW3 and informed him of the incident.
Bhajanamadam is about 200 mtrs away from the scene of occurrence.
He went to the said place in his autorickshaw after about 20 minutes
and then he saw PW1 lying on the road injured. Immediately, he
took PW1 to Welcare Hospital and then to Paalana Hospital. PW1
had injuries on his back and on his nose. The police took his
statement at Paalana Hospital. In the cross examination, PW2
2024:KER:68905
deposed that he had not seen the accused turning the autorickshaw of
PW1 turtle. When they arrived at the spot, they saw the autorickshaw
lying turtle. No altercation took place between both sides before the
attack. The accused had come running to the scene of occurrence and
attacked PW1. He saw A1 and A3 in possession of swords. A2 and
A4 were standing slightly away. During the first incident, A2 and
A4 had not approached PW1. It was A1 who had hacked PW1. He
had only seen A1 hacking PW1. A1 had hacked PW1 on his back.
Seeing the accused, PW1 had taken to his heels. A1 and A3 chased
PW1. PW2 denied having stated to the police that PW1 had been
restrained and hacked on his forehead. He also denied having stated
to the police that when PW1 fell down, A2 and A4 had hacked the
former with swords.
12.3. PW3 Dileesh, deposed that he had not seen the
incident in which PW1 was injured. However, he had seen PW1
lying injured in front of Bhajanamadam. He was also present when
PW1 was taken to the hospital. He was informed of the incident by
2024:KER:68905
PW2. He denied having given any statement to the police.
12.4. PW4 Santhosh, deposed that he was present near the
scene of occurrence and that he had witnessed the incident. He saw
PW1 and PW2 approaching the scene of occurrence. As soon as they
reached the scene, he saw the autorickshaw of PW1 being damaged
by A1 to A4. He saw the accused attacking PW1. All of them ran
towards Bhajanamadom. Three of the accused were armed with
swords. Later on, when he went near Bhajanamadam, he saw PW1
lying injured. He was also present when PW1 was taken to the
hospital. PW4 further deposed that A1 was armed with MO.1 sword.
In the cross-examination PW4 deposed that no altercation before the
attack had taken place. PW1 had taken to his heels when A1 had
hacked him with the sword. A1 had also restrained PW1. He did not
see PW1 being hacked on his forehead. PW1 fell down on being
hacked. PW1 got up and ran. He did not see the other accused
attacking PW1. When PW4 was asked whether he had stated to the
police that the other accused had also hacked PW1, answered that the
2024:KER:68905
other accused had also hacked PW1 while running towards
Bhajanamadom. But they did not hack him when PW1 was on the
ground.
12.5. PW6 Saravanan, deposed that the incident took place
in front of his shop. He saw the autorickshaw of PW1 being pushed
down by the accused persons. Then they hacked PW1, who started
running away from the scene. The accused chased him. He did not
then see the accused attacking PW1. When he reached
Bhajanamadom, PW1 had already been taken to the hospital. He had
seen the other accused also attacking PW1. PW6 identified MO.1 as
the sword in the possession of A1. PW6 admitted that he is an
accused in one or two cases.
13. It is true that there was smell of alcohol when PW1
was examined by the doctor. But all the witnesses deposed that no
altercation had taken place before the attack. There is no materials on
record to show that PW1 had in fact provoked the accused. Hence
the smell of alcohol at the time PW1 was examined is of no relevance.
2024:KER:68905
14. It is true that PW2 at one point of his examination
had stated that A2 and A4 were standing slightly away and that during
the first incident they had not come near PW1. However, the
testimony of PW1 as well as the testimony of PW6 clearly shows that
all accused persons had attacked PW1. The testimony of PW1, which
has not been discredited in any way, shows that all the accused
persons were involved in assaulting PW1 and that they had hacked
him with swords all over his body. Therefore, the injury to the nose
also could have been caused only during the course of the incident.
No materials have come to show that any other incident had taken
place other than the incident in this case. Therefore, fracture of the
nasal bone could have happened only in the course of the assault by
the accused.
15. It is true that only MO.1 sword was recovered by
the police in this case. There are no independent witnesses to support
the recovery of MO.1 which is stated to have been recovered on the
basis of the alleged disclosure statement given by the accused. Even if
2024:KER:68905
the said evidence is not satisfactory and it is found that there was no
recovery of all the weapons used in the assault, it is an established
proposition of law that recovery of weapon used in the commission of
the offence is not a sine qua non. The mere non recovery of the
weapon does not falsify the prosecution case where there is ample
unimpeachable ocular evidence. [Lakhan Sao v. State of Bihar,
(2000) 9 SCC 82; State of Rajasthan v. Arjun Singh, (2011) 9 SCC
115; Yogesh Singh v. Mahabeer Singh, AIR 2016 SC 5160;
Rakesh v. State of U.P., AIR 2021 SC 3233 and State through the
Inspector of Police v. Laly alias Manikandan, AIR 2022 SC
5034]. PW1 may have some criminal cases registered against him.
But that is no ground for disbelieving his testimony. On a whole
reading of the entire evidence on record, I find no infirmities in the
finding of the trial court regarding the commission of the offences
punishable under Sections 341, 326 and 427 read with Section 34 IPC
and hence the appeal is only liable to be dismissed.
In the result, the appeal is dismissed.
2024:KER:68905
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
ami/
