Kerala High Court
Jose vs State Of Kerala on 9 June, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 9TH DAY OF JUNE 2025 / 19TH JYAISHTA, 1947
CRL.A NO. 2017 OF 2007
AGAINST THE JUDGMENT DATED 25.09.2007 IN SC
NO.701 OF 2004 OF ADDITIONAL DISTRICT COURT (ADHOC-1),
THODUPUZHA
APPELLANTS/ACCUSED:
1 JOSE, S/O.VARGHESE, ATHICKAL HOUSE,
MULAKUVALIL THADIYAMPADU IDUKKI VILLAGE.
2 WILSON, S/O.VARGHESE, ATHICKAL HOUSE
IDUKKI VILLAGE.
3 PAPPU VARGHESE, S/O.VARKEY,
ATHICKAL HOUSE, IDUKKI VILLAGE.
BY ADVS.
DR.S.GOPAKUMARAN NAIR (SR.)
SRI.A.RAJASIMHAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SENIOR PUBLIC PROSECUTOR SRI RENJITH GEORGE
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 28.05.2025, THE COURT ON 09.06.2025 DELIVERED THE
FOLLOWING:
"C.R"
A. BADHARUDEEN, J.
================================
Crl.Appeal No.2017 of 2007
================================
Dated this the 9th day of June, 2025
JUDGMENT
Accused Nos.1 to 3 in S.C.No.701/2004 on the files
of Additional Sessions Court, Thodupuzha, assail the
conviction and sentence dated 25.09.2007 in the above case.
In this appeal, State of Kerala is arrayed as the respondent.
2. I shall refer the parties in this appeal as
`prosecution' and `accused' herein for easy reference.
3. This case was registered alleging
commission of offences punishable under Sections 341,
447, 307 and 294(b) read with 34 of the Indian Penal Code
(`IPC' for short), by the accused. The precise allegation is
that at 7.30 a.m on 20.12.2001, accused Nos.1 to 3 and 5
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along with the 4th person, a juvenile in conflict with law, assaulted the
defacto complainant with intention to do away him as well his wife.
Thereby the defacto complainant and his wife sustained injuries though
they survived. It is alleged by the prosecution that the defacto
complainant sustained fracture on his head and other injuries; and his
wife also sustained injuries.
4. After investigation when final report was filed
alleging commission of the said offences, the learned Magistrate
committed the case to the Court of Sessions, Thodupuzha, and
the same in turn made over to the Additional Sessions Court-I,
Thodupuzha. The learned First Additional Sessions Judge tried
accused 1 to 3 and 5 (4th person is a child in conflict with law).
During trial, PWs 1 to 9 were examined, Exts.P1 to P12 and
M.Os 1 to 4 were marked. The accused were questioned after
pointing out the incriminating circumstances found in their
evidence and were provided opportunity to adduce defense
evidence. Then the accused examined PW6 as DW1 and proved
Exts.D1 to D9.
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5. On analysis of the evidence the trial court
found that accused Nos.1 and 2 committed offences punishable
under Sections 326 and 447 r/w 34 of IPC. Further the 3 rd
accused was found guilty of the offence punishable under
Section 447 of IPC. The 5th accused was found guilty of the
offence punishable under Sections 341 and 447 of IPC and the
accused were sentenced as under:
"Accused Nos.1 and 2 were sentenced to
undergo rigorous imprisonment for three years each
and to pay fine of Rs.5,000/- (Rupees Five thousand
only) each u/s 326 of IPC or in default to undergo
simple imprisonment for six months each and to simple
imprisonment for two months each under Section 447 of
IPC.
Accused No.3 is sentenced to pay fine of
Rs.500/- (Rupees five hundred only) or in default to
undergo simple imprisonment for forty five days under
Section 447 of IPC.
Accused No.5 is sentenced to pay fine of
Rs.500/- (five hundred only) or in default to undergo
simple imprisonment for fifteen days under Section 447
of IPC and to pay fine of Rs.500/- (five hundred only)
u/s 341 IPC or in default to undergo simple
imprisonment for one week.
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Substantive sentences of imprisonment will
run concurrently. Set off allowed."
6. While assailing the conviction and sentence
imposed by the trial court, the learned counsel for accused
Nos.1 to 3 argued that in the instant case there is allegation of
attack and counter attack and Ext.D2 certified copy of charge
sheet in S.C.No.408/2005 proved by PW7 would substantiate
the counter case. Even though the counter case was ended in
acquittal, the learned counsel for the accused submitted that
there is serious fallacy in the prosecution evidence. According
to him, as per the final report filed, apart from PW1 and PW2
(CW1 & CW2), CW3 to CW8 also witnessed the occurrence. It
is also pointed out that even as per the FIS, Jomon and George
cited as CW3 and CW8 were present at the place of occurrence.
But the prosecution neither took interest to examine CW3 to
CW8 nor at least CW3 and CW8 to prove the occurrence.
Hence, the prosecution failed to adduce best evidence to see the
truth of the allegations in this case, where counter case was also
registered. Therefore this flaw will go to the root of the matter
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and in such contingency the accused are entitled to get
acquittal.
7. That apart, he also argued that as per the
scene plan even though the place of occurrence is pointed as
spot No.1, from the northern side of Maruthumparathandu
Panchayat road, blood stains were found in spot No.5, which is
situated 8.54 meters (6.12 plus 2.42) away from spot No.5 and
therefore the occurrence as alleged by the prosecution is
doubtful as seen from the scene plan.
8. He also highlighted the decision of the Apex
Court in [AIR 1997 SC 2583], D.V.Shanmugham and another
v. State of Andhra Pradesh, to contend that when independent
witnesses who witnessed the occurrence were not examined and
when there is no explanation as to how blood stained stones
were found at far off place of occurrence showing that
prosecution witnesses were not sure about place of occurrence,
then the same would go to the benefit of the accused.
9. Per contra, it is submitted by the learned
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Public Prosecutor that in this case the evidence of the injured
witnesses proved the prosecution allegation as to commission
of offences under Sections 326 and 447 by the accused and the
said versions are supported by the evidence of PW6 and
Exts.P6 and P7 wound certificates, showing multiple injuries
including fracture. Therefore, mere non-examination of the
independent witnesses would not throw off the entire
prosecution case. It is argued that since evidence available,
which is reliable, would prove the guilt of the accused, as found
by the trial court, there is no necessity to interfere with the
conviction and sentence.
10. Addressing the rival contentions, the point
arose for consideration are :
(i) Whether the trial court went wrong in finding that
accused Nos.1 and 2 committed offence under Section 326 r/w
34 of IPC?
(ii) Whether the trial court went wrong in finding
that accused Nos.1 and 2 committed offence under Section 447
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r/w 34 of IPC?
(iii) Whether the trial court went wrong in finding
that accused No.3 committed offence punishable under Section
447 of IPC?
(iv) Whether non examination of independent
witnesses is fatal to the prosecution?
(v) Is it necessary to interfere with the conviction
and sentence?
(vi) Order to be passed.
Point No.iv
11. While addressing the question as to whether non
examination of independent witnesses, whose statements were
recorded under Section 161 of Cr.P.C, would adversely affect the
case of the prosecution, it is relevant to refer the decisions of the
Apex Court on this point.
12. In the decision reported in [(2019) 8 SCC 529],
Manjit Singh v. State of Punjab, it was observed and held by the
Apex Court that reliable evidence of injured eyewitnesses could
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not be discarded merely for reason that no independent witness
was examined.
13. In the decision reported in [(2020) 2 SCC 563],
Surinder Kumar v. State of Punjab, it was held by the Apex
Court that merely because prosecution did not examine any
independent witness, would not necessarily lead to conclusion
that accused was falsely implicated.
14. In the decision reported in [(2020) 9 SCC 627],
Rizwan Khan v. State of Chhattisgarh, after referring to the
other decisions of the Apex Court including the decision in
[(2018) 13 SCC 808], State of H.P. v. Pardeep Kumar, the Apex
Court held that the examination of independent witnesses is not
an indispensable requirement and such non-examination is not
necessarily fatal to the prosecution case.
15. These decisions were followed by the Apex
Court in the decision reported in [LL 2021 SC 245 : 2021 KHC
6269 : (2021) 6 SCC 116], Guru Dutt Pathak v. State of Uttar
Pradesh while affirming the point that non examination of
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independent witnesses is not fatal to the prosecution case. Thus
the law emerges is that non examination of independent
witnesses is not fatal to the prosecution in cases where credibility
of the injured witnesses is fully established. To put it differently,
non examination of independent witnesses, whose statements
were recorded under Section 161 of Cr.P.C, could not be held
fatal to the case of the prosecution. It is the credibility of the
testimony of the witnesses examined by the prosecution which
has to be appreciated by the court is whether their evidence
appears to be truthful, creditworthy and acceptable. The mere
fact that some other witnesses whose statements were recorded
under Section 161 Cr.P.C have not been examined would not
adversely affect the case of the prosecution. But in order to
avoid challenge on this ground, the prosecution may try to
examine the independent witness/witnesses for more credibility.
Point No.2
16. In the instant case crime was registered
recording the statement of the defacto complainant, who was
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examined as PW1 and he supported Ext.P1 FIS recorded as that
of him. His evidence is that at about 7.30 a.m on 20.12.2001, the
3rd accused came along the road in front of his house and abused
and threatened to assault him, while PW1 along with his wife,
who was examined as PW2, had been watering vegetable
cultivation and were providing net for the said purpose.
According to PW1, later the 1st accused Jose and the 2nd accused
Wilson, the sons of the 3rd accused, trespassed upon the property
of PW1 and PW2, carrying chopper with them. Soon, Wilson
beat PW1 by using a stone and PW1 warded off. Meanwhile
PW2 came in front of PW1 to rescue him and stated that without
killing PW2 they could not attack PW1. Wilson started beating
PW1 from behind and PW2 restrained it and he caught hold of
PW2 and dragged towards the road. When PW1 attempted to
reach near his wife, the 1st accused caused cut injury to PW1 by
using a chopper and he restrained the same by using his left hand
and he sustained injury on his left small finger. Soon he pushed
back Jose. Wilson beat PW2. Before PW1 reached near PW2,
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accused Nos.4 and 5 reached and caught hold of him disallowing
his further movement. Soon Jose caused cut on his right ear,
head and backside of the head. Thereafter he escaped from there
and moved towards PW2. Then the 2nd accused beat on his left
shoulder by using the reverse side of the chopper. Later he fell
down. Soon Jomon, George and Nijo, son of PW1, reached there
and restrained them. Later PW1 and PW2 were taken to
hospital. PW1 stated that the accused did the above overt acts,
since the 3rd accused, who owed Rs.2 lakh to PW1 obtained for
the purpose of marriage of his daughter after giving possession
of 80 cents of property as per the agreement, was in inimical
terms with him. PW1 deposed that the sale deed of the property
could not be executed because there was no patta for the said
land and there was civil case pertaining to the same and an order
of injunction also was passed against the 3rd accused. His
version further is that the accused are close relatives and he
identified the choppers as M.O1 and M.O2. Even though PW1
was cross examined at length to shake his version, in fact,
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nothing extracted to disbelieve the version of PW1 as regards to
material particulars as spoken by him during chief examination.
17. Supporting the version of PW1, PW2 also
given evidence narrating the occurrence. PW4, the Additional
Sub Inspector of Police, Idukki Police Station given evidence
that he recorded Ext.P1 F.I statement as that of CW1 and
registered Ext.P4 F.I.R on the said basis. PW3 admitted his
signatures in Exts.P2 and P3 seizure mahazars pertaining to
recovery of M.O1 and M.O2. PW6 examined is Dr.J.Thomas
and he deposed about examination of PW1 and PW2 at 6.45 p.m
on 20.12.2001 while he was working as the Assistant Surgeon,
District Hospital, Idukki. He supported issuance of Ext.P6
wound certificate pertaining to PW1 and Ext.P7 wound
certificate pertaining to PW2 which would suggest the following
injuries:
"From Ext.P6:
1. 10X3 cm lacerated wound over high
parietal region bone deep fracture, palpable about 8X1
cm haematoma present.
2. Contused lacerated wound 2X1 cm
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over occipital region.
3. Deep wound on left index finger
proximal inter phalengeal joint involved.
4. 1X2 cm contused lacerated would
left ring finger.
5. 2X1 cm abrasion on back right side.
From Ext.P7:
1) 1X1 cm abrasion over left hand.
and
2) 1X1 cm abrasion over left foot."
18. Ext.P5 is the site plan regarding the place of
occurrence proved through PW5.In Ext.P5 presence of blood
stain in spot No.5, 8.54 metres distant place is pointed out. But
as per Ext.P8 scene mahazar no such narration could be
gathered, though this is an anomaly as has been highlighted by
the learned counsel for the accused to disbelieve the prosecution
case. PW5 supported Ext.P5 and stated that he located the place
of occurrence on the basis of Ext.P2 scene mahazaar. PW7 is
the Investigating Officer who investigated the crime from
21.12.2001 and he prepared Ext.P8 scene mahazar. He
supported preparation of Ext.P2 seizure mahazar and Ext.P2 is
the authorship of concealment recorded as that of the accused for
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proving the recovery of M.Os as per Ext.P9 property list. Ext.P10 is
the forwarding note, whereby the weapons were sent for chemical
analysis and Ext.P11 FSL report were marked. As per Ext.P8
and as deposed by PW7, the place of occurrence is the property
of PW1. Even though in Ext.P5 site plan presence of blood
stain noted at a distant place, as pointed out by the learned
counsel for the accused, as per Ext.P8 scene mahazar, no such
narration could be gathered. Since the scene plan has been
prepared on the basis of scene mahazar at a later stage (after
preparation of scene mahazar soon after occurrence) at a distant
place from the place of occurrence, which could not be a reason
to doubt the prosecution case. Apart from Ext.P8 scene mahazar
prepared by PW7, Ext.P2 seizure mahazar regarding recovery of
M.O1 chopper was proved by PW3. Ext.P3 seizure mahazar
regarding recovery of M.O2, which was proved by PW2,
supported by the evidence of Investigating Officer. PW8
verified the final report and filed charge in this case. PW9 is
Dr.K.Jayakumar, who had given evidence that while he was
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working as Professor, Neuro Surgeon, Medical College
Hospital, Kottayam, as per certificate issued by Reji Varghese,
Lecturer in Orthopaedics, MCH, Kottayam, he was consulted
PW1 Mr. K.P.Paul with the alleged history of assault. His C.T
of head showed fracture of fronto parietal region right side of the
skull with extra dural haematoma producing mass effect.
19. It is interesting to note that in this case, counter
case was also registered alleging commission of offence
punishable under Section 324 of IPC by the injured persons
herein, as evident from Ext.D2, copy of final report herein.
Admittedly the same ended in acquittal. Since it is pointed out
by the learned counsel for the accused that even though this is a
case and counter, no appeal/revision preferred by the
prosecution or the aggrieved persons against the acquittal
recorded in the counter case. However, the point argued by the
learned counsel for the appellant/accused is that in this matter
the accused persons also sustained injuries and this also was
stated by PW7, who was examined as DW1 on the side of the
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defense. True, that PW6 was examined as DW1 on the side of
the defense. During examination, DW1 deposed that he issued
Ext.D3 wound certificate pertaining to Jobin and found lacerated
wound of 1X1 cm over right knee. He deposed about the
preparation of Ext.D4 pertaining to Varghese and found
complaints of pain left shoulder and found complaints of
tenderness over left shoulder. Similarly he issued Ext.D5 wound
certificate in relation to Sinoj, the 5th accused, and he had
complaints of pain lower abdomen, but no external injuries. He
also supported Ext.D6 pertaining to Jose, the 1 st accused, aged
41 years and diagonised injury 1X1 cm, abrasion left shoulder,
lacerated wound 3X1 cm left ring finger, lacerated wound 4X1
cm on the left middle finger and abrasion 3X1 cm left forearm.
He also supported Ext.D7 pertaining to Wilson which would
show only simple injuries.
20. It is the settled law that when case and counter
are alleged, there must be simultaneous trial to find out the truth
of the contra allegations. In this case, admittedly the counter
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case ended in acquittal and no appeal/revision filed thereof.
Evaluating the evidence given by DW1 supported by Exts.D1 to
D7, the accused persons sustained only simple injuries whereas
PW1 suffered multiple injuries including fracture by the use of
M.O1 and M.O2 which would justify commission of offence
punishable under Section 326 of IPC by accused Nos.1 and 2. In
this case the depositions given by the injured witnesses are
truthful, trustworthy and to be acted upon without insisting
examination of independent witnesses. On appreciation of
evidence, the conclusion to be recorded is that accused Nos.1
and 2 caused grievous hurt to PW1 and simple hurt to PW2 and
thereby the trial court rightly found that accused 1 and 2
committed offence punishable under Sections 326 r/w 34 of IPC.
Similarly the trial court found that there was criminal trespass
defined under Section 441 of IPC punishable under Section 447
as it has come out in evidence tendered that the accused persons
trespassed upon the property of PW1. Since the overt acts at the
instance of the 3rd accused is confined commission of offence
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punishable under Section 447 of IPC by him, he was convicted
so. In such a case conviction imposed by the trial court would
no require any interference for the reasons argued by the learned
counsel for the appellants/accused. Therefore, conviction is
confirmed.
21. Regarding the sentence in consideration of the
facts involved, I am inclined to modify the sentence as far as
accused 1 and 2 are concerned.
In the result, this appeal stands allowed in part by
confirming the conviction and modifying the sentence imposed
against accused 1 and 2 alone while confirming the sentence
against accused No.3 as such. Therefore, accused Nos.1 and 2
are sentenced to undergo rigorous imprisonment for a period of
2 years and to pay fine of Rs.3000/- (Rupees Three thousand
only) each under Section 326 of IPC and in default of payment
of fine, accused Nos.1 and 2 shall undergo rigorous
imprisonment for a period of one month.
Sd/-
A. BADHARUDEEN, JUDGE
rtr/
