Kerala High Court
Kunjumon @ Eleevchacko vs State Of Kerala on 29 January, 2025
Criminal Appeal No.410 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 29TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946
CRL.A NO. 410 OF 2014
AGAINST THE JUDGMENT DATED 27.03.2014 IN SC NO.48 OF
2013 ON THE FILE OF THE COURT OF SESSION, THODUPUZHA.
APPELLANTS:ACCUSED NOS.1 TO 3
1 KUNJUMON @ PHILIP CHACKO,
(WRONGLY SHOWN AS ELEEVCHACKO IN THE JUDGMENT)
AGED 64 YEARS, S/O.CHACKO OLIKKARA HOUSE,
SWAPNA JUNCTION BHAGAM, VELLARINKUNNEKARA,
KUMALY VILLAGE, IDUKKI DISTRICT.
2 GIGIMON JACOB PHILIP,
S/O.PHILIP CHACKO, AGED 43 YEARS,
OLIKKARA HOUSE, SWAPNA JUNCTION BHAGAM,
VELLARINKKUNNEKARA, KUMALY VILLAGE,
IDUKKI DISTRICT.
3 JOSHY @ JOSHY PHILIP,
AGED 42 YEARS, S/O.PHILIP CHACKO,
OLIKKARA HOUSE, SWAPNA JUNCTION BHAGAM,
VELLARINKUNNEKARA, KUMALY VILLAGE,
IDUKKI DISTRICT.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SRI.T.ANIL KUMAR
SRI.MANU TOM
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.THOMAS ABRAHAM NILACKAPPILLIL
SRI.M.VIVEK
Criminal Appeal No.410 of 2014
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RESPONDENT:COMPLAINANT.
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
BY ADV.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21.01.2025, THE COURT ON 29.01.2025 DELIVERED THE FOLLOWING:
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C.S.SUDHA, J.
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Criminal Appeal No.410 of 2014
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Dated this the 29th day of January 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellants who are accused nos. 1 to 3 in S.C.No.48/2013 on the
file of the Court of Session, Thodupuzha challenge the conviction
entered and sentence passed against them for the offences
punishable under Sections 341, 323, 326 and 452 read with Section
34 IPC.
2. The prosecution case is that on 30/06/2012 at
04:30 p.m the accused persons in furtherance of their common
intention criminally trespassed into the shop room of PW1 situated
in Ward No.III, Kumily Grama Panchayat and abused him by
calling obscene words. The first accused with a chopper tried to
hack PW1 which was warded off by the latter. The second accused
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wrongfully restrained PW1 and hit him on his back causing pain.
The third accused with a reaper beat PW1 on his head causing hurt
as well as grievous hurt. The accused persons attacked PW1 with
the knowledge that by their act even death could be caused. Hence,
the accused persons as per the final report were alleged to have
committed the offences punishable under Sections 452, 294(b),
341, 323, 326 and 308 read with Section 34 IPC.
3. Crime no.626/2012, Kumily Police Station, that is,
Ext.P5 FIR was registered by PW8, Sub Inspector of Police,
Kumily Police Station based on Ext.P1 FIS of PW1 which
statement was recorded by PW7, Additional Sub Inspector, Kumily
Police Station. PW8 conducted the investigation and on completion
of the investigation submitted the final report alleging the
commission of the offences punishable under the aforementioned
Sections by the accused persons.
4. On appearance of the accused persons, the
jurisdictional magistrate after complying with all the necessary
formalities contemplated under Section 209 Cr.P.C., committed the
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case to the Court of Session, Thodupuzha. The case was taken on
file as S.C.No.48/2013 and thereafter made over to the Additional
Sessions Judge-III, Thodupuzha for trial and disposal. The trial
court on 02/04/2013, framed a charge for the offences punishable
under Sections 452, 294(b), 341, 323, 326 and 308 read with
Section 34 IPC, which was read over and explained to the accused
persons to which they pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW9 were
examined and Exts.P1 to P14, X1 and M.O.1 to M.O.4 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 them in the evidence of the prosecution. The accused
persons denied all 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
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documentary evidence was adduced by the accused persons.
7. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment found no evidence to find accused persons
guilty of the offences punishable under Sections 308 & 294(b) IPC
and hence they were acquitted of the said offences under Section
235(1) Cr.P.C. However, they have been found guilty of the
offences punishable under Sections 452, 341, 323 and 326 read
with Section 34 IPC. Accused persons have been sentenced to
rigorous imprisonment for three years each and to a fine of
₹10,000/- each of the offence punishable under Section 326 read
with Section 34 IPC and in default to rigorous imprisonment for
three months each ; to simple imprisonment for two years each and
to a fine of ₹5,000/- each and in default to simple imprisonment for
two months each of the offence punishable under Section 452 IPC
and simple imprisonment for one month each of the offences
punishable under Sections 341 and 323 read with Section 34 IPC.
The sentences have been directed to run concurrently. Out of the
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fine amount, if realized, an amount of ₹25,000/- has been directed
to be given as compensation to PW1. Set off has also been allowed.
Aggrieved, the accused persons 1 to 3 have 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 persons/appellants by the trial court are
sustainable or not.
9. Heard both sides.
10. It was submitted by the learned counsel for the
appellants/accused persons that the trial court grossly erred in
convicting the accused persons in the light of the insufficient
materials on record. The trial court committed a grave mistake in
not trying the counter case along with the present case though a
request to the said effect had been made on behalf of accused
persons. Relying on the dictum in Aneesh P. v. State of Kerala,
2024 (7) KHC 64 it was submitted that irrespective of the nature of
the offences committed the case and counter case must be tried
simultaneously. This procedure is insisted on to prevent the danger
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of an accused being convicted before his whole case is before the
Court; it prevents conflicting judgments being delivered upon
similar facts and because in reality, the case and the counter case
are different or conflicting versions of one incident for all intents
and purposes. It was further pointed out that there was no recovery
of the weapons alleged to have been used in the crime by the
accused persons. In the statement to the doctor by PW1, he never
mentioned the use of knife by the accused persons. There was only
reference to a stone having been used for the attack. The case that
the accused persons had used a knife comes up thereafter which is
clearly an afterthought. The incident in the counter case in which
case the first accused herein is the injured, is the true narration of
the facts. PW1 fell down and sustained injuries when he tried to
attack and assault the first accused. The present false crime has
been registered with the assistance of the police. Per contra it was
submitted by the learned Public Prosecutor that there are sufficient
materials on record to find the accused persons guilty of the
offences for which they have been charged. There is no infirmity in
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the findings of the trial court calling for an interference by this
Court.
11. Admittedly, accused nos.2 and 3 are the sons of
the first accused. According to PW1, the injured, he is conducting a
provision store in Swapna junction at Vellaramkunnu. On
30/06/2012 at 04:30 p.m. while he was sitting in his shop, the
accused persons came inside his shop and abused him by calling
obscene words. The first accused with a chopper attempted to hack
him at which time he moved back which prevented him from
sustaining any injury. The second accused then caught hold of him
and hit on his back. The third accused with a reaper beat him on his
forehead which caused hurt and grievous hurt. PW1 also deposed
that the accused persons attacked him by saying that nobody would
question them even if they killed him. Had he not moved back
when the first accused attempted to hack him with the chopper, he
would have sustained injures which would have been fatal.
Immediately after the incident he was taken to the hospital for
treatment where he gave Ext.P1 FIS to the police. According to
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PW1, M.O.1 was the chopper used by the first accused and M.O.2
is the reaper used by the third accused. As a result of the attack by
the accused persons he had sustained a fracture on his forehead.
PW1 also deposed that the accused persons attacked him as they
were under the belief that he had poisoned their duck.
11.1. PW2 the daughter-in-law of PW1 supports the
testimony of her father-in-law. According to her on 30/06/2012 at
about 04:30 p.m. when she went to the shop of PW1 to bring back
her child, she saw the accused trespassing into the shop and
abusing PW1. The first accused was armed with a chopper and the
third accused was holding a reaper. The first accused waved the
chopper at PW1 but as PW1 moved back, he did not sustain any
injury. The second accused caught hold of PW1 and hit him on his
back. The third accused beat on the forehead of PW1 with a reaper
causing injury. PW1 fell down at which time she cried out aloud.
Hearing her cries, her husband rushed to the spot and took PW1 to
the hospital for treatment. PW2 also identified M.O.1 and M.O.2.
PW2 also deposed that the accused attacked PW1 under the belief
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that the latter had poisoned and killed their duck.
11.2. PW3 an independent witness also supported the
version of PW1 and PW2.
11.3. PW4 deposed that following injuries could
be caused with M.O.2 reaper.
" 1) Sutured wound over forehead.
2) X-ray undisplaced hair line fracture of frontal bone."
11.4. PW9, Superintendent-in-charge, Periyar Hospital,
Kumily deposed that CW5, Dr. K.M.Thomas, the owner of the
Hospital is aged 94 years. He is familiar with the signature of Dr.
K.M.Thomas, who had issued Ext.P14 wound certificate. Ext.X1 is
the case sheet of PW1 who was brought to the hospital on
30/06/2012. As per the documents, he had sustained a lacerated
wound over the forehead on the frontal bone. The patient was
referred to a neuro surgeon. The alleged cause was stated to be
assault with a stick.
12. According to the prosecution, A1 to A3 had
surrendered before the police and then they produced M.O.1
chopper and M.O.2 reaper before the police. However, PW6,
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attestor to Ext.P4 seizure mahazar deposed that PW1 and one
Sobin were present in the police station and that it was they who
had produced the chopper and reaper before the police, at which
time the accused persons were not present. He identified M.O.1
and M.O.2. which he had seen at the police station. The evidence
regarding the seizure of M.O.1 and M.O.2 is certainly not
satisfactory. But recovery of weapon(s) used in the commission of
an offence is not a sine qua non to convict the accused [See
Mritunjoy Biswas v. Pranab alias Kuti Biswas, AIR 2013 SC
3334 ; Sanjeev Kumar Gupta v. State of U.P., (2015)11 SCC
69 ; Yogesh Singh v. Mahabeer Singh, (2017)11 SCC 195 ;
Rakesh v. State of U.P., (2021)7 SCC 188 ; State through the
Inspector of Police v. Laly alias Manikandan, AIR 2022 SC
5034).
13. On going through the testimony of PW1 to PW3,
I do not find any reasons to disbelieve their testimony as it has not
been discredited in any way. It is true that in Ext.P14 wound
certificate it is stated that PW1 was attacked with a stone and a
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wooden stick. This is of not much relevant because it is the duty of
the doctor to treat the patient and not to find out about the
assailants or regarding the weapons used.
14. As pointed out by the learned counsel for the
appellants, on going through the file, I find that an application, that
is, Crl.M.P.No.1856 of 2013 was filed on behalf of the accused
persons. The said application is seen filed on 03/05/2013 when the
trial was scheduled to commence on 07/05/2013. In the application
it is stated that on the basis of the first information statement given
by the first accused herein, police has registered a crime against
PW1, that is, crime no.707/2012, Kumily police station, alleging
the commission of the offences punishable under Section 429 and
324 IPC. Since both the cases arise from the same incident they are
to be tried simultaneously by the same court. The final report in
crime no.707/2012 has been filed before the jurisdictional
magistrate, Peermedu. However, the case has not been committed
and therefore the accused persons sought an adjournment of the
trial of the case. The application is seen allowed by the trial court
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as per order dated 07/05/2013 on payment of costs. Costs was paid
on 08/05/2013 and hence the application stood allowed. It is not
clear from the records as to what happened thereafter. The
Registry was directed to ascertain the status of the said crime from
the jurisdictional magistrate. A copy of the judgment in
C.C.No.1099/2014 based on the final report in Crime No.707/2012,
Kumily police station, has been forwarded. On going through the
said judgment dated 26/07/2018, I find that the jurisdictional
magistrate has acquitted the accused therein, that is, PW1 herein
under Section 248(1) Cr.P.C. of the offence punishable under
Section 324 IPC. After allowing Crl.M.P.No.1856/2013, the trial
court ought to have adjourned the trial in S.C.No.48/2013 and
awaited the committal of C.C.No.1099/2014 under Section 323
Cr.P.C. However, the trial court is seen to have proceeded with the
trial of the case and passed the impugned judgment on 27/03/2014.
This is certainly an irregularity committed by the trial court. On
going through the judgment in C.C.No.1099/2014, it is seen that
the FIS in the said crime was given by A1 herein on 28/07/2012,
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which was nearly one month after the incident took place on
30/06/2012. No explanation for the delay was furnished and hence
for the said reason and in the light of the other unsatisfactory
evidence on record, the court acquitted the accused therein, mainly,
PW1 herein. No materials have come on record as to whether any
appeal has been preferred against the judgment in
C.C.No.1099/2014. A1 herein has no such case also. It is no
doubt true that when there is a case and a counter case, they will
have to be decided simultaneously by the same Judge.
15. On going through the testimony of PW1 to PW3,
I do not find any reasons to disbelieve them. Therefore, though an
irregularity was committed by the trial court, I do not find any
injustice caused. There is no infirmity or illegality in the findings
of the trial court. Hence, I find no reasons for interference.
16. Now coming to the sentence to be imposed on the
accused persons. The first accused was 62 years in the year 2012
when the incident occurred. He must now be around 75 years old.
None of the accused persons have any criminal antecedents. The
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dispute seems to have arisen because the accused persons were
under the impression that PW1 had poisoned their duck. In such
circumstances, the interest of justice would be met, if the accused
persons are sentenced to imprisonment for a day till the rising of
the Court and to pay compensation of ₹15,000/- each to PW1 and
in default to simple imprisonment for one year. The impugned
judgment is modified to the said extent.
In the result, the appeal is partly allowed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ak
