Kerala High Court
Anil vs State Of Kerala on 17 July, 2025
2025:KER:52857
THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 17TH DAY OF JULY 2025 / 26TH ASHADHA, 1947
CRL.A NO. 639 OF 2007
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.407 OF 2005 OF
ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA ARISING OUT OF
THE ORDER/JUDGMENT DATED IN CP NO.127 OF 2004 OF JUDICIAL
MAGISTRATE OF FIRST CLASS, ADOOR
APPELLANTS/ACCUSED:
1 ANIL @ ANI, KANJIRAVILAYIL VEEDU,
CHENNAIKUNNU PADINJARECHERUVIL, PONGALADI MURI,
PANDALAM, THEKKEKARA VILLAGE.
2 SUBHASH @ KOCHUMON, S/O.CHANDRAN
SUBHASH BHAVANAM VEEDU, KUNDUMURUPPEL KALLARAVILAYIL,
PONGALADI MURI, PANDALAM, THEKKEKARA VILLAGE.
3 MOHANAN S/O.PODIYAN
CHENNAIKUNNU PADINJARECHERUVIL VEEDU, PONGALADI MURI,
PANDALAM, THEKKEKARA VILLAGE.
4 VIJAYAN S/O.AYYAPPAN,
CHENNAIKUNNU PADINJARECHERUVIL VEEDU, PONGALADI MURI,
PANDALAM, TEKKEKARA VILLAGE.
BY ADV SRI.SALIM V.S.
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV.
SRI.ALEX M. THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
11.07.2025, THE COURT ON 17.07.2025 DELIVERED THE FOLLOWING:
CRL.A NO. 639 of 2007 :2:
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'C.R.'
JUDGMENT
The accused Nos. 1 to 4 in S.C.No.407/2005 on the file
of the Additional Sessions Court (Adhoc I), Pathanamthitta,
have preferred this appeal challenging the judgment of
conviction and the order of sentence passed against them for
the offences punishable under Sections 341, 324, and 326 r/w
34 of the Indian Penal Code.
2. The case of the prosecution in brief is as follows;
The accused, CW1 and CW2, were initially followers of
the CPI(M), a political party. Subsequently, accused severed
their association with CPI(M) and joined another political party
named KDP. CW1 later contested in a local body election under
the banner of CPI(M), and consequently, the accused
developed animosity towards CW1 and CW2. While so, on
09.01.2002 at 1.15 p.m., CW1 and CW2 came in an
autorikshaw driven by CW3 and stopped near a rice mill at
Mamoodu. Thereafter, CW2, after alighting from the
autorikshaw, went to a nearby shop. Then the accused Nos. 1
to 4, in furtherance of their common intention, encircled the
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autorikshaw in which CW1 was sitting. The 1st accused then
caught hold of the hair of CW1 and pulled him out of the
autorikshaw and hacked him with a sword stick, causing
injuries to his right palm and fingers. Then the 2nd accused
hacked at the rib portion of CW1 using a sword stick, and the
3rd accused struck CW1 on his hand with another sword stick.
Meanwhile, the 4th accused hit on the back and neck of CW1
with a stone. When CW3, the driver of the autorikshaw,
attempted to intervene and asked the accused not to assault
CW1, the accused Nos. 2 to 4 beat him with their bare hands.
Upon seeing the same when CW2 rushed to the spot, the 2nd
accused hacked at his chin with a sword stick. Moreover, the
4th accused struck CW2 on the right side of his face using a
stone, causing fracture of mandible. Thereafter, accused Nos.
1, 2, and 4 restrained CW2 and threatened him not to disclose
the same to anybody, and the 3rd accused caught hold of the
tongue of CW2 and inflicted a cut injury on it. Hence, the
accused are alleged to have committed the offences punishable
under Sections 341, 324, 326, and 307 r/w 34 of the IPC.
3. Upon completion of the investigation, the final report
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was laid before the Judicial First Class Magistrate Court, Adoor.
Being satisfied that the case is one triable exclusively by a
Court of Session, the learned Magistrate, after complying with
all the necessary formalities, committed the case to the Court
of Session, Pathanamthitta, under section 209 of Cr.P.C. The
learned Sessions Judge, having taken cognizance of the
offences made over the case for trial and disposal to the
Additional Sessions Court (Fast track Court-I), Pathanamthitta.
On appearance of the accused before the trial court, the
learned Additional Sessions Judge, after hearing both sides
under section 227 of Cr.P.C. and upon a perusal of the records,
framed a written charge against the accused for offences
punishable under Section 341, 324, 326, and 307 r/w 34 of
IPC. When the charge was read over and explained to the
accused, all of them pleaded not guilty and claimed to be tried.
4. During the trial, from the side of the prosecution, PW1
to PW13 were examined and marked Exts.P1 to P15. After the
completion of the prosecution evidence, the accused were
questioned under Section 313 of Cr.P.C., during which all of
them denied all the incriminating materials brought out in
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evidence against them. Thereafter, both sides were heard
under Section 232 of Cr.P.C., and as it was not a fit case to
acquit under the said sections, the accused were directed to
enter on their defence and to adduce any evidence they may
have in support thereof. Thereupon, one witness was
examined from the side of the accused as DW1 and marked
Ext.D1. Thereafter, both sides were heard in detail, and finally,
the learned Additional Sessions Judge found all the accused not
guilty of the offence punishable under Section 307 r/w 34 IPC,
and they were acquitted on the said charge. However, all the
accused were found guilty of the offences punishable under
Sections 341, 324, and 326 r/w 34 of the IPC and convicted.
The accused Nos. 1 to 4 were sentenced to undergo simple
imprisonment for one month and to pay a fine of Rs.500/- each
for the offence punishable under Section 341 of IPC. In default
of payment of the fine, the accused were ordered to undergo
simple imprisonment for fifteen days. For the offence
punishable under Section 324 of IPC, accused Nos. 1 to 4 were
sentenced to undergo rigorous imprisonment for one year and
to pay a fine of Rs.1,000/- each with a default clause to
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undergo simple imprisonment for thirty days. For offence
punishable under Section 326 r/w 34 of IPC, accused Nos. 1 to
4 were sentenced to undergo rigorous imprisonment for four
years and to pay a fine of Rs.5,000/- each with a default clause
to undergo rigorous imprisonment for three months. Out of
the fine amount, if realised, Rs.5,000/- was ordered to be
given to PW1 and Rs.10,000/- was ordered to be given to PW2
as compensation under Section 357(1)(b) of Cr.P.C. Aggrieved
by the said finding of guilt, conviction, and the order of
sentence passed, the accused have come up with this appeal.
5. I heard the learned counsel for the appellants and
the learned Senior Public Prosecutor.
6. The learned counsel for the appellants submitted
that the learned trial judge convicted the accused without a
proper appreciation of the facts and evidence brought out in
this case. According to the counsel, since the weapons
allegedly used in the commission of the offence were not
recovered, the conviction of the accused for the offence under
Section 326 IPC is unsustainable. It was further contended
that the medical evidence adduced in this case clearly indicates
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that the injuries sustained by the victims could not have been
inflicted by using the weapons of the nature allegedly used in
the commission of the offence. The learned counsel also
pointed out that there was prior political enmity between the
accused and PW1 and PW2, and therefore, the latter had a
strong motive to falsely implicate the accused. As such, the
testimony of PW1 and PW2, according to the counsel, is not
reliable and cannot form a basis for conviction. In response,
the learned Public Prosecutor submitted that this being a case
built upon the direct ocular evidence of the injured witnesses,
there is no scope for any interference in the judgment which is
under challenge in this appeal. According to the learned Public
Prosecutor, apart from the evidence of the injured witness,
there is evidence of an independent witness and medical
evidence to support the case of the prosecution. The learned
Public Prosecutor submitted that, given the serious nature of
the overt acts attributed to the accused, they deserve no
leniency in the matter of sentence as well.
7. In order to prove the charge levelled against the
accused, the prosecution examined thirteen witnesses as PW1
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to PW13. Among them, PW1, PW2, and PW3 are injured
witnesses. However, during the examination before the court,
PW3 turned hostile to the prosecution by deposing that he
could not recall the incident or identify the accused. Out of the
remaining witnesses, PW4, PW5, PW6, PW8, and PW10 are
independent witnesses cited and examined by the prosecution
to prove the occurrence. However, except PW8, all others
turned hostile to the prosecution by deposing that they did not
witness the incident. PW7 is the Doctor who medically
examined PW1 and PW2 and issued the wound certificates.
PW9 is an attester to the scene mahazar. PW11 is the
Sub-Inspector of Police, who recorded the FIS given by PW1
and registered the FIR. It was he who prepared the scene
mahazar and conducted the initial part of the investigation of
this case. The FIS given by PW1 is marked as Ext.P1, and the
FIR is marked as Ext.P4. The scene mahazar prepared by
PW11 is marked as Ext.P4. PW12 is the Doctor who treated
PW2 and issued the discharge certificate. The Circle Inspector
of Police, who conducted the major part of the investigation,
was examined as PW13.
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8. The law was set in motion in this case on the strength
of the FIS given by Suresh Kumar, one of the injured in this
case, to the Sub Inspector of Police, Koduman. When the first
informant was examined as PW1, he deposed as follows: The
accused are residents of his locality, and known to him. He is a
social worker. On 09.02.2002 at 1.50 p.m., while he, along with
his friend Vinod (PW2), was travelling in the autorikshaw driven
by one Chandrabose (PW3) from Adoor to his house, and on
the way, the autorikshaw was stopped at Mamoodu Junction.
Then Vinod alighted from the autorikshaw and went to a
nearby shop. In the meantime, the accused Nos. 1 to 4 rushed
towards the autorikshaw, shouting threats to kill him. The 1st
accused caught hold of his hair and pulled him out from the
autorikshaw and hacked him with a sword stick. He blocked
the said attack using his hand, and sustained injuries on his
right hand, including cut injuries to three of his fingers. The
4th accused was holding a stone in his hand, and the 2nd and
3rd accused were holding sword sticks in their hands.
Thereafter, the 3rd accused hacked on his right hand using the
sword stick, and the 2nd accused hacked on his rib area with a
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sword stick. Furthermore, he was pelted with stone. In the
meantime, PW2 rushed to the scene. Then the 4th accused
struck PW2 on the head with a stone. Due to the impact of the
hit, PW2 fell down. Then the 3rd accused pulled PW2's tongue
out and caused a cut injury on it. The remaining accused
assisted the 3rd accused in committing this act. On noticing
that the local people were gathering there, the accused fled the
scene in different directions. Both he and PW2 were workers of
the CPI(M). The accused were also previously CPI(M) workers,
but recently they joined another political party named KDP.
According to PW1, he was a candidate in the last local body
election under the banner of CPI(M), and he won the election
by defeating the candidate of KDP. It was out of this political
rivalry, the accused attacked him and PW2 with the intention to
kill them. The sword sticks used by the accused were
approximately one hand long and three inches wide. After the
incident, both he and PW2 were taken to the Government
Hospital, Adoor, by one Saji, in an autorickshaw. After
receiving first aid, he was shifted to Maria Hospital Adoor,
where he remained under treatment for around 70 days. PW2
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was taken to the Medical College Hospital, Kottayam. While
undergoing treatment, he gave a statement to the Police.
9. PW2, the other injured witness, deposed that he is a
worker of CPI(M), a political party, and the accused are
loyalists of another political party, KDP. On 09.02.2002, at
1.50 p.m., while he and Suresh Kumar (PW1) were travelling to
their respective houses in an autorikshaw, and when they
reached Mamoodu Junction, the autorikshaw was stopped.
Thereafter, he went to a nearby shop to purchase beedis. On
the way to the shop, he heard a commotion, and when he
turned back, he saw the 1st accused pulling out PW1 from the
autorikshaw by holding on his hair. Thereafter, the 1st accused
hacked PW1 with a sword stick. PW1 tried to block the attack
using his hands and sustained injuries. If PW1 had not blocked
the said attack, the same would have fallen on PW1's neck, and
his death would have occurred. In the meantime, the 4th
accused struck PW1 on the back with a sword stick, and the
2nd and 3rd accused also hacked PW1 using sword sticks.
Upon seeing the same, when he attempted to restrain the
accused, the 4th accused struck him on the face with a stone,
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causing fracture. The 1st accused hacked him on the chin
using a sword stick. Thereafter, Mohanan (A3) and Vijayan (A4)
forcefully held both his hands behind his back, and they raised
his head backward. Then the 3rd accused pulled out his
tongue and inflicted an injury on it using a sword stick. He was
also threatened not to say anything that he had witnessed
regarding the incident. The accused also assaulted the driver
of the autorikshaw in which they came to Mamoodu Junction.
The accused were formerly loyalists of the CPI(M) party.
However, when they were denied a seat in the last local body
election, they left CPI(M) and joined another political party
named KDP. PW1 had contested in that election as a CPI(M)
candidate, and he actively worked for PW1 in the said election.
It was due to the said animosity, the accused attacked him as
well as PW1. The accused used to raise threats against him and
PW1. After the incident, when he raised alarm, the accused
fled from the spot and they took the weapons with them. After
the incident, both he and PW1 were taken to the Government
Hospital, Adoor, and subsequently referred to the Medical
College Hospital, Kottayam.
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10. PW8, an independent witness to the occurrence,
deposed as follows: He is a rubber tapper. He knows both
PW1, PW2, and the accused in this case. The incident in this
case occurred on 09.01.2002 at 1.15 p.m. at Mamoodu
Junction, and he witnessed the same. It was when he reached
Mamoodu Junction after rubber tapping and while coming out
of the tea shop of one Sasi, after having a tea. At that time,
he saw an autorickshaw arriving at Mamoodu Junction and
stopping in front of a rice mill. He then saw Vinod (PW2)
alighting from the autorikshaw and going to a nearby shop.
The accused, who were then sitting on the seating ledge of a
shop, rushed towards the autorikshaw and surrounded it.
Suddenly, the 1st accused caught hold of the hair of Suresh
(PW1), who was sitting inside the autorickshaw, and pulled him
out. Thereafter, the 1st accused drew a sword stick from inside
his shirt and hacked PW1. Then PW1 blocked the said attack
by using his hands and sustained injury to his hand.
Thereafter, the 1st accused repeatedly hacked PW1, and PW1's
left hand was injured. Among the four accused, three of them
were armed with sword sticks, and one was carrying a stone in
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his hand. The 4th accused, who was holding the stone, hit on
the neck of PW1 using the same. In the meantime, PW2
rushed to the scene. Then the 4th accused hit on his face with
the said stone. The 1st and 2nd accused also struck PW2 on
the face with the stone, and PW2 collapsed down. Thereafter,
the accused held both the hands of PW2 behind his back, and
the 3rd accused inflicted cut injury on PW1's tongue. Seeing
local people gathering there, the accused fled from the spot,
taking the weapons with them. After the incident, PW1 and
PW2 were taken to the Government Hospital, Adoor. PW3
identified all the accused before the court.
11. This is a case in which the prosecution relies on the
oral testimonies of two injured witnesses and that of an
independent witness to prove the occurrence. Their evidence
finds sufficient corroboration from the medical evidence
adduced in this case. During examination before the court,
PW1 and PW2, the injured witnesses, as well as PW8, had
given a detailed account of the incident explaining how it
began, developed, and ended. The testimonies of PW1 and
PW2, being injured witnesses, carry special weight in law.
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Ordinarily, the injuries sustained by such witnesses serve as
strong proof of their presence at the crime scene and also
assure that they also sustained injuries in the incident,
particularly when the nature of the injuries is not suggestive of
being self-inflicted. PW1, PW2, and PW8 were having a
consistent case that they were well acquainted with all the
accused. This fact is not disputed by the defence. The offence
was alleged committed in broad daylight. Therefore, there is
no reason to suspect the identification of the accused made by
PW1, PW2, and PW8 before the court. More pertinently, even
the accused have not disputed the identification made by these
witnesses during the trial.
12. While analyzing the evidence of PW1 and PW2, it is
important to note that it is well settled through a catena of
judicial pronouncements that the testimony of injured
witnesses is entitled to a special weight. Such a witness will
not ordinarily implicate an innocent person so as to allow the
actual culprit to escape. In Brahm Swaroop and another v.
State of Uttar Pradesh reported in AIR 2011 SC 280, the
Hon'ble Supreme Court held that:
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The testimony of an injured witness has its own
relevancy and efficacy as he has sustained injuries at the
time and place of occurrence, and this lends support to
his testimony that he was present at the time of
occurrence. The testimony of an injured witness is
accorded a special status in law. Such a witness comes
with a built in guarantee of his presence at the scene of
the crime and is unlikely to spare his actual assailants in
order to falsely implicate someone. Convincing evidence
is required to discredit an injured witness. Thus, the
evidence of an injured witness should be relied upon
unless there are grounds for the rejection of his evidence
on the basis of major contradictions and discrepancies
therein.
In essence, there is no illegality in convincing an accused in
a criminal case on the basis of the evidence of injured
witnesses, provided such evidence is convincing and reliable.
The evidence that the injured witnesses guarantee is primarily
with respect to their presence at the scene of occurrence and
the fact that they sustained injuries during the incident.
However, it can not be laid as an inflexible rule that the
testimony of an injured witness must be considered as gospel
truth in every circumstance. If there is a reasonable possibility
of false implication or if contradictions and material
discrepancies are apparent in their evidence, such testimony
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must be viewed with care and circumspection. In the present
case, the evidence of PW1 and PW2, the injured witnesses, is
mutually corroborative. Both of them successfully withstood
the cross-examination, and their evidence is free from material
contradictions and omissions, even of a minor nature. More
pertinently, their evidence is well corroborated by the evidence
of PW8, an independent witness, who had no apparent motive
to falsely implicate the accused.
13. The learned counsel for the appellants contended that
the conviction under Section 326 of the IPC cannot be
sustained, as the essential ingredients to attract an offence
under Section 326 of the IPC are lacking in this case. To
support the said contention, it was emphasized that the
weapons allegedly used were not recovered in this case.
However, I am unable to concur with the contention of the
learned counsel for the appellants that the non-recovery of the
weapon could render a conviction under Section 326 of the IPC
unsustainable. In order to attract an offence under Section 326
IPC, evidence regarding the infliction of grievous hurt with a
dangerous weapon is necessary. However, the recovery of the
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weapon of offence is not a sine qua non for sustaining a
conviction under Section 326 of the IPC. Non-recovery of the
weapon used in the crime is not necessarily fatal to the
prosecution's case, especially when there exists strong and
reliable eyewitness testimony. When the ocular evidence is duly
corroborated by medical evidence, the non-recovery of the
weapon becomes inconsequential. In Lakhan Sao v. State of
Bihar [2000 (9) SCC 82] the Hon'ble Supreme Court held that
mere non-recovery of weapon does not falsify the prosecution
case where there is ample unimpeachable ocular evidence. A
similar view has been taken by the Hon'ble Supreme Court in a
series of cases. [see Mritunjoy Biswas v. Pranab alias Kuti
Biswas., (2013) 12 SC 796; Sanjeev Kumar Gupta v.
State of U.P., (2015) 11 SCC 69; Rakesh and another v.
State of U.P., (2021) 7 SCC 188; State through the
Inspector of Police v. Laly alias Manikandan, 2022 SCC
Online SC 1424.]
14. In the case at hand, the evidence of the injured
witnesses as well as that of the independent witness reveals
that immediately after the commission of the offence, the
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accused fled from the scene carrying the weapons of offence.
Ordinarily, after commission of the offence, disposal or
concealment of the weapon lies exclusively within the personal
knowledge of an accused, unless it is established that the
weapons were abandoned at the crime scene itself. If the
accused refrains from disclosing the location where the
weapons were concealed or disposed of, the prosecution cannot
be faulted for its non-recovery. However, the non-recovery of
the weapons would be significant if the medical evidence is
totally inconsistent with the ocular evidence and is of such a
nature to cut the root of the ocular evidence.
15. In the case at hand, the evidence reveals that
immediately after the incident, PW1 and PW2 were taken to the
Government Hospital, Adoor. When the Doctor who medically
examined PW1 and PW2 and issued the wound certificates was
examined as PW7, he deposed that on 09.01.2002, while he
was working as Assistant Surgeon in the Community Health
Centre, Adoor, he examined PW1 and issued a wound
certificate. The said wound certificate is marked as Ext.P2.
Referring to Ext.P2 wound certificate, the Doctor deposed that
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in the examination of PW1, he noted the following injuries;
1)Lacerated injury 4cmx2cmx bone deep over the ventral
aspect of the 1st phalanx of the right index finger.
2) Lacerated injury 3cmx2cmx bone deep over the ventral
aspects of the 1st phalanx of the right middle finger.
3)Lacerated injury 2cmx1cmx1cm over the ventral aspect
of the first phalanx of the right finger.
4)Abrasion 5cmx3cm over the chest below right nipple.
5)Multiple contused abrasions over the scalp.
According to him, the alleged history was വടിവാളുകൊണ്ടു നാല്
പേർ ചേർന്ന് വെട്ടുകയും എറിയുകയും ചെയ്തതിൽ വച്ച്. On unequivocal times,
PW7 testified that the injuries noted by him could be caused as
alleged.
16. PW7, the Doctor, further deposed that, on the same
day, he examined PW2, and the wound certificate pertaining to
the examination of PW2 is marked as Ext.P3. According to
PW7, on examination of PW2, he noted the following injuries;
1)Lacerated injury 7cmx4cmx4cm over the tip tongue,
and it was bleeding profusely.
2)Lacerated injury 5cmx2cmx3cm over the posterior
aspect of the tongue near the lip.
3)Lacerated injury 4cmx3cmxmuscle deep over the
right side of the face near the right eye.
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4)Multiple lacerated injury over the chin, he was
referred to the Medical College Hospital.
According to him, the alleged history was വടിവാളുകൊണ്ടു വെട്ടുകയും
നാക്ക് വെട്ടുകയും പല ഭാഗത്തു വെട്ടുകയും ചെയ്തതിൽ വച്ചു. Referring to the
injuries, PW7 opined that all those injuries noted by him could
be caused as alleged.
17. Furthermore, the Doctor who treated PW2 at Medical
College Hospital, Kottayam, was examined as PW12. He
deposed that on 19.02.2002, while he was working as a
lecturer in Oral and Maxillofacial Surgery, Medical College
Hospital, Kottayam, he treated PW2, who was admitted to the
said hospital on 11.02.2002. According to the Doctor, he
treated PW2 for the following injuries: 1) Fracture of right
zygomatic complex. 2) The tongue was deeply cut. PW12
deposed that PW2 was discharged from the hospital only on
19.02.2022. Referring to Ext.P12 discharge certificate, PW12
opined that the injury No.1 can be caused by hitting with a
stone.
18. One of the main contentions raised by the learned
counsel for the appellant is that the injuries noted could not
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have been inflicted using a weapon like a sword stick. It was
urged that since injuries noted are lacerated wounds, they
could not have been caused by a weapon that has a sharp
edge, such as sword stick. According to the counsel, if a sword
stick was used to hack PW1 and PW2, then the injuries should
have been incised wounds, not lacerated wounds. While
considering the said contention, it is to be noted that the
evidence of PW7, the Doctor, shows that the history stated by
the injured was that they were hacked with a sword stick, and
the injuries noted by him could have been caused as alleged.
Likewise, during the chief examination, PW7 sticks to the stand
that the injuries noted by him can be inflicted using a sword
stick. During the cross-examination, PW7 admitted that
sharp-edged instruments can cause incised wounds. It is true
that generally sharp-edged weapons cause incised wounds,
while lacerated wounds are usually inflicted by blunt objects.
In the case at hand, the ocular evidence shows that the
accused used sword sticks to attack the injured. However, the
injuries noted in the wound certificate are lacerated in nature.
Anyhow, when the ocular evidence convincingly establishes
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that the accused used sword sticks to hack PW1 and PW2, and
when the medical evidence demonstrates that both sustained
multiple serious injuries, the ocular evidence cannot be
disbelieved.
19. In case of discrepancy between medical and ocular
evidence, the general rule is that the credible and trustworthy
ocular evidence prevails, especially when the medical evidence
does not completely contradict the version given by
eyewitnesses. In other words, the ocular evidence can be
undermined only when the medical evidence conclusively
disproves the possibility of occurrence and cuts the root of the
ocular evidence. The medical evidence is an opinion evidence
primarily used for corroboration. In contrast, ocular evidence
is substantive and primary evidence, particularly when it comes
from injured and credible eyewitnesses. Therefore, I am of the
view that the minor discrepancies regarding the nature of the
injuries are not sufficient to discard the convincing and
trustworthy ocular evidence presented in this case. Likewise,
on the basis of the minor discrepancies brought out in the
medical evidence, it can not be said that the non-recovery of
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the weapon is fatal to the prosecution. Accordingly, I have no
hesitation in holding that the non-recovery of the weapon pales
into insignificance in the facts and circumstances of this case,
especially when the ocular evidence of PW1, PW2, and PW8 is
found to be convincing, reliable, and capable of inspiring the
confidence of the Court.
20. The upshot of the above discussion is that the
evidence of PW1, PW2, and PW8 regarding the occurrence is
convincing and reliable. PW1 and PW2, being the injured
witnesses, their evidence is entitled to special weight.
Moreover, their evidence is well corroborated by the evidence
of PW8, an independent witness. Even the accused does not
have a case that PW8 bore any grudge or animosity towards
them that would motivate him to falsely implicate them in a
case of this nature. The ocular evidence adduced in this case
finds sufficient corroboration from the medical evidence
adduced in this case. Injuries corresponding to the overt acts
attributed to the accused are noted in the medical examination
of PW1 and PW2 conducted immediately after the incident.
The nature and location of the injuries indicate that they are
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not self-inflicted and could not be caused by a fall. Therefore, I
have no hesitation in holding that the findings of the trial court
are appropriate and require no interference.
21. While considering the question whether any
interference is required in the sentence imposed by the trial
court, I am of the view that the sentences imposed on the
accused for offences punishable under Sections 341 and 324
IPC do not call for any interference, as the same appears to be
commensurate with the nature of the offences committed.
However, the sentence of rigorous imprisonment for four years
imposed under Section 326 of the IPC appears to be somewhat
harsh, especially in the absence of any materials indicating that
the accused has criminal antecedents. Therefore, I am of the
view that the punishment imposed for offence punishable
under Section 326 IPC warrants modification. Accordingly, the
sentence of rigorous imprisonment for four years is reduced to
rigorous imprisonment for two years, with a fine of Rs.5,000/-
each. In default of payment of fine, the accused are ordered to
undergo rigorous imprisonment for three months. The
substantive sentences shall run concurrently. Set off is
2025:KER:5285
allowed. The fine amount shall be given to PW1 and PW2 as
compensation under Section 357(1)(b) of Cr.P.C. as directed in
the trial court's judgment.
With this affirmation and modification, the appeal is
allowed in part.
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
