Pushpangadan vs State Of Kerala
2025 Latest Caselaw 6404 Ker

Kerala High Court

Pushpangadan vs State Of Kerala on 29 May, 2025

                                                   2025:KER:38098


CRL.A NO. 468 OF 2007

                                  1

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

 THURSDAY, THE 29TH DAY OF MAY 2025 / 8TH JYAISHTA, 1947

                     CRL.A NO. 468 OF 2007

      AGAINST THE JUDGMENT DATED 15.02.2007 IN SC NO.785

OF 2003 OF ADDITIONAL DISTRICT AND SESSIONS (ADHOC) FAST

              TRACK COURT-III, PATHANAMTHITTA

APPELLANT/ACCUSED:

         PUSHPANGADAN
         S/O.KUNJU PILLAI
         PAROOR HOUSE, EDAKULAM MURI,
         VADASSERIKKARA VILLAGE, RANNY TALUK.


RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM.

         ADV SHEEBA THOMAS, PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.05.2025,   THE    COURT   ON       29.05.2025   DELIVERED   THE
FOLLOWING:
                                                  2025:KER:38098


CRL.A NO. 468 OF 2007

                               2

                                                           CR
                         JUDGMENT

Dated this the 29th day of May, 2025

This appeal is at the instance of the sole accused in

S.C.No.785/2003 on the files of the Additional Sessions Court,

Pathanamthitta. The State of Kerala, represented by the

Public Prosecutor, is arrayed as the sole respondent herein.

2. Heard Adv.Akash S, the learned Amicus

curiae, appearing for the appellant/accused and the learned

Public Prosecutor for the State, in detail. Perused the verdict

under challenge and the records of the trial court.

3. In this case, the prosecution alleges

commission of offences punishable under Sections 448 and

307 of the Indian Penal Code (hereinafter referred to as 'IPC'

for short) by the accused. The specific case of the prosecution

is that due to prior animosity towards the defacto complainant

(CW1), since he refused to withdraw an earlier case, viz., 2025:KER:38098

CRL.A NO. 468 OF 2007

C.C.No.135/2002, launched by the defacto complainant,

pending before the Judicial First Class Magistrate Court,

Ranny, the accused, with intention to cause murder of the

defacto complainant, criminally trespassed upon the northern-

eastern corner of the northern varanda of the stationery shop

situated on the eastern side of Paroor house, at 7.30 pm on

23.01.2003 and threatened to kill the defacto complainant. As

a follow up, he caused injuries to the defacto complainant by

beating on his head and in consequence thereof, the defacto

complainant sustained injuries on his both hands and head,

though he survived.

4. On committal of the matter before the

Sessions Court, the same was made over to the Additional

Sessions Court for trial and disposal. The trial court framed

charge for the said offences and recorded evidence. On the

side of prosecution, PW1 to PW10 were examined and

Exts.P1 to P12 and MO1 and MO2 were marked.

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CRL.A NO. 468 OF 2007

5. After completion of the prosecution evidence,

even though the accused was given opportunity to adduce

defence evidence after questioning him under Section 313(1)

(b) of Cr.P.C, he did not adduce any evidence.

6. Thereafter, on evaluation of evidence, the

learned Sessions Judge found that the appellant/accused is

guilty for the offence punishable under Section 307 IPC, while

acquitting him for the offence punishable under Section 448 of

IPC. Accordingly, he was sentenced to undergo simple

imprisonment for a period of one year and pay fine of

Rs.1,000/- (Rupees one thousand only). In default of payment

of fine, simple imprisonment for a period of one month also

was imposed. The above conviction and sentence are under

challenge in this appeal.

7. While assailing the conviction and sentence

imposed by the trial court, the learned Amicus curiae

vehemently argued that once the court found that the accused 2025:KER:38098

CRL.A NO. 468 OF 2007

did not commit offence under Section 448 of IPC, the finding

that the accused committed offence punishable under Section

307 of IPC by beating on the head of the defacto complainant,

who was examined as PW1, is an impossibility. If so, for the

said reason, the conviction and sentence are liable to be set

aside. In this connection, the learned Amicus curiae given

much emphasis to the evidence of PW7, the Village Officer,

who prepared Ext.P6, site plan, which would suggest that it is

not possible to criminally trespass upon the varandha because

of two desks, one put up on the northern extremity of the

showroom and the other put up on the eastern extremity of the

shop room. He also argued that in the circumstances, the

prosecution case is in the midst of doubts and thereby the

accused deserves acquittal.

8. Per contra, the learned Public Prosecutor would

submit that the finding of the trial court, merely relying on the

evidence of PW7 and Ext.P6 that there is no possibility of 2025:KER:38098

CRL.A NO. 468 OF 2007

criminal trespass, is wrong, even though no separate appeal

has been filed by the State challenging the said finding. It is

pointed out further that going by the evidence of PW1 and

PW2, supported by PW4 , the Doctor, and Ext.P3 wound

certificate dated 02.12.2006, the attack at the instance of the

accused by using MO1, iron rod, has been established so as

to find that the accused committed offence punishable under

Sections 307 of IPC. In such view of the matter, the trial court

is perfectly justified in finding commission of the said offence

by the accused. Thus, the trial court verdict does not require

any interference.

9. Having addressed the rival arguments, the

points arise for consideration are;

1. Whether the trial court went wrong in holding that the accused committed offence punishable under Section 307 of IPC?

2. Whether the trial court verdict requires interference?

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CRL.A NO. 468 OF 2007

3. Reliefs to be ordered?

10. PW1 is the injured and the crucial witness

who gave evidence in support of the occurrence. During chief

examination his evidence is that he had been running a shop

at Edakkulam Muri, Pallickamuruppel, situated on the western

side of Vadasserikara Mandirampadi road, and his house also

abutted the said shop. His version further is that the varandha

and the small room attached to the house were used as the

shop room. According to him, at about 7.30 pm on 23.01.2003,

while he was sitting on the chair and reading newspaper, a

person was found near the eastern wall. When the defacto

complainant noticed that the said person was looking at him,

he questioned the same. Soon Pushpangadan (the accused)

jumped and reached near him along with an iron rod and

attempted to kill him. Soon the accused beat on him and when

he restrained the same by using his right hand, he sustained 2025:KER:38098

CRL.A NO. 468 OF 2007

injuries on the right leg. The accused again beat on him and

the same caused injury on the left side of his forehead. When

he beat for the 3rd time, he fell down along with the chair.

Seeing that, the daughter-in-law of the defacto complainant

reached there and taken him inside the room and closed the

door. Seeing this, the accused ran away from the spot. The

statement of the defacto complainant was recorded while he

was undergoing treatment at Govt.Hospital, Pathanamthitta

and he supported Ext.P1 as the statement so recorded. He

identified the accused as the assailant. Ext.P3 wound

certificate proved through PW4 (Dr.Rajan) who prepared and

issued Ext.P3. It has been stated in Ext.P3 that the cause of

injury is assault by Pushpangadan by using a stick at 7.30 pm on

23.01.2003 and it was deposed so by the doctor. Apart from

that, as per Ext.P3 wound certificate and evidence of PW2, two

injuries were noted by the doctor, viz, (1) lacerated wound 3x1

cm over the top of scalp and (2) tenderness on the right forearm.

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The opinion as to the cause of injury would be as alleged and

he also deposed that by using MO1, the injuries could be

caused. It is pointed out by the learned Amicus curiae that the

doctor opined that the injury could be caused by fall and

coming into contact with any hard object. PW2 examined in

this case is none other than the daughter-in-law of PW1, who

rescued PW1. She supported the version of PW1 in similar

terms. She also identified MO1 'iron rod' as well as MO2

'thourthu'. It is discernible that PW3, an independent witness

who is the nearby shop owner, turned hostile. He did not

support the prosecution case. After recording the FIS as

deposed by PW1, the Sub Inspector of Police, Ranni Police

Station (PW9) registered FIR, alleging commission of offences

punishable under Sections 448 and 307 of IPC, as Ext.P7, as

deposed by him. PW7 is the Village Officer, who prepared

Ext.P6 scene plan. Apart from that, PW5 was examined to

prove Ext.P4 scene mahazar. PW10, the Investigating Officer, 2025:KER:38098

CRL.A NO. 468 OF 2007

deposed about the recovery of MO2 'thorthu' while preparing

Ext.P4 scene mahazar. PW10 also given evidence that while

the accused was questioned in police custody, by preparing

Ext.P8 search memo MO1 'iron rod' was recovered from the

house of the accused and the same was identified through the

accused and also got identified through the doctor.

11. In order to find out the ingredients under

Section 307 of IPC, it is necessary to extract the said penal

provision as such and the same reads as under:

"307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."

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Thus the ingredients are;

       (i)     That the accused did an act;
       (ii)    That the act was done with intention or

knowledge and under such circumstances to cause a bodily injury as the accused knew to be likely to cause death or that such bodily injury was in the ordinary course of nature to cause death, or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury a is likely to cause death; and

(iii) That the accused had no excuse for incurring the risk of causing such death or injury.

In other words, the ingredients are;

       (i)     that the death of a human being was
               attempted;
       (ii)    that such death was attempted to be

caused by, or in consequence of the act of the accused; and

(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as:

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(a) the accused knew to be likely to cause death; or

(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury (see decision in Chimanbhai Jagabhai Patel v. State of Gujarat, reported in AIR 2009 SC 3223 : (2009) 11 SCC 273).

12. The first part makes any act committed with

the intention or knowledge that it would amount to murder if

the act caused death punishable with imprisonment up to ten

years. The second part makes such an act punishable with

imprisonment for life if hurt is caused thereby. Thus even if the 2025:KER:38098

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act does not cause any injury it is punishable with

imprisonment up to 10 years. If it does cause an injury and

therefore hurt, it is punishable with imprisonment for life (see

decision in Pasupuleti Siva Ramakrishna Rao v. State of

Andhra Pradesh, reported in 2014 (2) Scale 417 : (2014) 5

SCC 369).

13. In the decision in State of Madhya Pradesh

V. Saleem, reported in (2005) 5 SCC 554, the Court held that

to sustain a conviction under Section 307 IPC, it was not

necessary that a bodily injury capable of resulting in death

should have been inflicted. As such, non-conviction under

Section 307 IPC on the premise only that simple injury was

inflicted does not follow as a matter of course. In the said

judgment, it was pointed out that the court has to see whether

the act, irrespective of its result, was done with the intention or

knowledge and under circumstances mentioned in the section.

The position that because a fatal injury was not sustained 2025:KER:38098

CRL.A NO. 468 OF 2007

alone does not dislodge Section 307, IPC conviction has been

reiterated in Jage Ram v. State of Haryana, (2015) 11 SCC

366 and State of Madhya Pradesh v. Kanha, (2019)3 SCC

605. Yet, in Jage Ram (supra) and Kanha (supra), it was

observed that while grievous or life threatening injury was not

necessary to maintain a conviction under Section 307, IPC,

the intention of the accused can be ascertained from the

actual injury, if any, as well as from surrounding

circumstances. Among other things, the nature of the weapon

used and the severity of the blows inflicted can be considered

to infer intent.

14. Now the crucial question arises for

consideration is whether the finding of the trial court that the

accused did not commit offence under Section 448 of IPC, on

wrong appreciation of evidence by itself, is a reason to

disbelieve the prosecution case in toto or whether the overt

acts at the instance of the accused as discernible from the 2025:KER:38098

CRL.A NO. 468 OF 2007

evidence already discussed would establish the ingredients

for the offence under Section 307 of IPC.

15. In the instant case, the injuries sustained by

PW1, as found in Ext.P3 wound certificate prepared by PW4,

are, (1) lacerated wound 3x1 cm over the top of the scalp (2)

tenderness on the right forearm. On measuring the size of

MO1, the same is one having 103 cm length and a width of

10mm. When the accused beat on the head of PW1, he

prevented the same by using his right hand and thereby he

sustained tenderness on the right forearm. Thereafter, again

the accused beat on the head and the same caused lacerated

wound 3x1 cm over the top of the scalp and again when he

was beaten, PW1 fell down along with the chair and he was

saved by her daughter-in-law. It is strange to note that merely

relying on the evidence of PW7, the village officer and Ext.P6,

the scene plan, the learned Sessions Judge jumped into a

conclusion that the accused did not commit offence 2025:KER:38098

CRL.A NO. 468 OF 2007

punishable under Section 448 of IPC. On evaluating the

evidence already discussed, the said finding is erroneous as

the evidence would suggest that the accused reached near

PW1 and beat on his head by using MO1 'iron rod', with

intention to cause his death. But he survived. In such a view,

it could not be held that the acquittal of the accused for the

offence under Section 448 of IPC is justifiable. However, no

appeal preferred by the State challenging acquittal of the

accused for the offence under Section 448 of IPC and

therefore, this Court is not in a position to interfere with the

acquittal. Holding that the said finding is erroneous, it has to

be held that the evidence discussed in detail, proved the

ingredients to attract the offence under Section of 307 of IPC

and therefore, the trial court rightly convicted the accused and

the said conviction does not require any interference. Coming

to the sentence, the sentence is very reasonable, therefore,

the sentence also, does not require any interference.

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In the result, this appeal fails and is dismissed with

direction to the accused to surrender before the trial court

within four weeks from today. On failure to surrender, the trial

court is directed to execute sentence as per law.

Registry is directed to forward a copy of this judgment

to the jurisdictional court for information and compliance.

Sd/-

A. BADHARUDEEN JUDGE nkr