Kerala High Court
Joemon vs State Of Kerala on 16 October, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl. Appeal No.382 of 2017&
Crl. Appeal (V) No. 09/2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
THURSDAY, THE 16TH DAY OF OCTOBER 2025 / 24TH ASWINA, 1947
CRL.A NO. 382 OF 2017
CRIME NO.2862/2010 OF ALUVA EAST POLICE STATION, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED 11.04.2017 IN SC
NO.265 OF 2013 OF ADDITIONAL DISTRICT COURT & MOTOR
ACCIDENT CLAIMS TRIBUNAL/RENT CONTROL APPELLATE AUTHORITY,
NORTH PARAVUR ARISING OUT OF THE ORDER/JUDGMENT DATED IN
CP NO.34 OF 2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
ALUVA
APPELLANTS/ACCUSED NOS. 1 TO 4:
1 JOEMON
AGED 45 YEARS, S/O VARGHESE,VELLOMPILLY
HOUSE,ASHOKAPURAM, MANAKKAPPADY, ALUVA
2 BABU
AGED 42 YEARS, S/O VARGHESE,VELLOMPILLY HOUSE,
ASHOKAPURAM, MANAKKAPPADY, ALUVA
3 THOMAS
AGED 49 YEARS, S/O VARGHESE,VELLOMPILLY HOUSE,
ASHOKAPURAM, MANAKKAPPADY, ALUVA
4 JOHNSON
AGED 55 YEARS, S/O VARGHESE,VELLOMPILLY HOUSE,
ASHOKAPURAM, MANAKKAPPADY, ALUVA
BY ADVS.
SRI.V.JOHN SEBASTIAN RALPH
SMT.P.V.DENCY
Crl. Appeal No.382 of 2017&
Crl. Appeal (V) No. 09/2021
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SRI.K.J.JOSEPH (ERNAKULAM)
SRI.V.JOHN THOMAS
SRI.JACOB J. ANAKKALLUNKAL
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE C.I OF POLICE, ALUVA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA AT ERNAKULAM, COCHIN-31
BY ADV. NEEMA T.V. SR. PP.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
16.10.2025, ALONG WITH CRA(V).9/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Crl. Appeal No.382 of 2017&
Crl. Appeal (V) No. 09/2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
THURSDAY, THE 16TH DAY OF OCTOBER 2025 / 24TH ASWINA, 1947
CRA(V) NO. 9 OF 2021
CRIME NO.2862/2010 OF ALUVA EAST POLICE STATION, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED 11.04.2017 IN SC
NO.265 OF 2013 OF ADDITIONAL DISTRICT COURT & MOTOR
ACCIDENT CLAIMS TRIBUNAL/RENT CONTROL APPELLATE AUTHORITY,
NORTH PARAVUR ARISING OUT OF THE ORDER/JUDGMENT DATED IN
CP NO.34 OF 2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
ALUVA
APPELLANT:
LISSY VARGHESE
AGED 59 YEARS
W/O.LATE V.D.VARGHESE, VELLAMBILLY HOUSE,
ASHOKPURAM KARA, ALUVA,
ERNAKULAM DISTRICT-683 101.
BY ADVS.
SMT.ROSIN JOSEPH
SMT.RESHMA E.
SMT.ATHEENA ANTONY
SMT.SRUTHY K.K
SRI.P.VIJAYA BHANU (SR.)
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
Crl. Appeal No.382 of 2017&
Crl. Appeal (V) No. 09/2021
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HIGH COURT OF KERALA, ERNAKULAM.
2 JOEMON,
AGED 49 YEARS
S/O.VARGHESE, RESIDING AT VELLAMBILLY HOUSE,
ASHOKAPURAM, MANAKKAPPADY, ALUVA P.O.,
ERNAKULAM DISTRICT-683 101.
3 BABU,
AGED 47 YEARS
S/O.VARGHESE, RESIDING AT VELLAMBILLY HOUSE,
ASHOKAPURAM, MANAKKAPPADY, ALUVA P.O.,
ERNAKULAM DISTRICT-683 101.
4 THOMAS,
AGED 51 YEARS
S/O.VARGHESE, RESIDING AT VELLAMBILLY HOUSE,
ASHOKAPURAM, MANAKKAPPADY, ALUVA P.O.,
ERNAKULAM DISTRICT-683 101.
5 JOHNSON,
AGED ABOUT 59 YEARS, S/O.VARGHESE, RESIDING AT
VELLAMBILLY HOUSE, ASHOKAPURAM, MANAKKAPPADY,
ALUVA P.O., ERNAKULAM DISTRICT-683 101.
BY ADVS.
SRI.V.JOHN SEBASTIAN RALPH
SRI.V.JOHN THOMAS
SHRI.VISHNU CHANDRAN
SHRI. RALPH RETI JOHN
KUM. KEERTHANA SUDEV
SHRI.APPU BABU
SMT.SHIFNA MUHAMMED SHUKKUR
THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING COME
UP FOR ADMISSION ON 16.10.2025, ALONG WITH CRL.A.382/2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl. Appeal No.382 of 2017&
Crl. Appeal (V) No. 09/2021
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COMMON JUDGMENT
K. V. Jayakumar, J.
These appeals are preferred impugning the judgment of the learned
Additional Sessions Judge, North Paravur dated 11.04.2017 in S.C. No.265
of 2013. Criminal Appeal No.382 of 2017 is preferred by the accused
Nos.1 to 4 and Criminal Appeal (V) No.09/2021 is preferred by the victim
of the case. The appellant Nos.1 to 4 stood for trial for the offences
punishable under Sections 447, 427, 294(b), 323, 324 and 302 r/w 34 of the
Indian Penal Code ('IPC' for the sake of brevity) and under Section 27 of
the Arms Act.
2. By the impugned judgment of the learned Additional Sessions
Judge, North Paravur, convicted the accused Nos.1 to 4 and sentenced to
undergo rigorous imprisonment for five years each and to pay a fine of
Rs.10,000/- each under Section 326 read with Section 34 IPC, with a
default clause. They were also sentenced to undergo rigorous imprisonment
for one year each under Section 427 IPC and to undergo rigorous
imprisonment for three months under Section 447 IPC. However, the
learned Additional Sessions Judge acquitted the accused for the offences
punishable under Sections 294(b), 323, 324 and 302 IPC and Section 27 of
the Arms Act.
The prosecution case
3. The prosecution case in brief is that on 10.10.2010 at about
10.45 p.m., the accused Nos.1 to 4 in furtherance of their common
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intention to commit the murder of Varghese, carrying deadly weapons like
chopper, sickle, swords etc., came to the public road on the eastern side of
the compound wall of the residential premises of PW1 (Devassy) and
deceased Varghese, forcefully opened the gate in front of the house of PW1
and pushed it down and trespassed into the property. When the deceased
Varghese, PWs.1, 2 and 6 questioned the aforesaid acts of the accused, the
accused No.1 inflicted a deep cut injury on the right leg just above the foot
of the deceased. When the witnesses attempted to take the injured to the
hospital, the accused obstructed the vehicle. PWs.2 and 6 somehow
managed to take the injured Varghese to hospital. However, owing to
profuse bleeding from the cut injury, Varghese died.
4. On 11.10.2010 at about 01.30 a.m., PW1 (Devassy) lodged
Ext.P1 FIS before the Aluva Police Station. On the basis of Ext.P1 FIS,
PW19 (Nishad Ibrahim) the Sub Inspector of Police, Aluva, registered
Ext.P1(a) FIR.
5. Thereafter, PW24 (A.V. Prabhullachandran), the Circle
Inspector of Police took up the investigation. He prepared Ext.P2, inquest
report. At the time of the inquest, he had seized MO-5 and MO-6, the
dresses worn by the deceased. He has also seized MO-7 wooden stick,
MO-8 hollow bricks, MO-9 series, pieces of granite stones, MO-10 broken
pieces of roof tiles and MO-11 a pair of chappals as per Ext.P3 scene
mahazar. He arrested the accused on 12.10.2010 at about 05.10 a.m., after
preparing the contemporaneous documents. He has also recorded the
confession statements of each of the accused.
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6. As per the disclosure statement of accused No.1 Jomon, he has
recovered MO-1 chopper from his tharavadu house. Ext.P6(a) is the
relevant portion of the disclosure statement. As per Ext.P7(a), the relevant
portion of the disclosure statement, MO-3 sword was recovered from the
firewood shed of the house of accused No.2. Like wise, he was seized
MO-4 sword at the instance of accused No.3 and MO-2 sickle at the
instance of accused No.4. He identified the accused and the material
objects.
7. As per Ext.P14 mahazhar, he had seized MO-12 shirt and
MO-13 lungi, the dress worn by accused No.1 at the time of the incident.
He had also seized the dress worn by accused No.2 (MO-14 shirt and
MO-15 dhoti). PW24 had also seized the dresses worn by accused Nos.3
and 4. He recorded the statements of the witnesses and showed the material
objects to them. Thereafter, the accused were produced before the
jurisdictional Magistrate along with Ext.P26 remand report. After
completing the investigation, he laid the charge sheet.
The proceedings before the trial court
8. After completing the initial steps, the case was committed to
the Court of Sessions, Ernakulam. From there, the case was made over to
the Additional Sessions Court, Paravur for trial and disposal. The learned
Additional Sessions Judge, after hearing both sides, framed charge against
the accused. When the charge was read over and explained to the accused,
they pleaded not guilty and claimed to be tried.
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9. During the course of trial, PWs.1 to 24 were examined by the
prosecution and Exts.P1 to P31 were marked. Material objects 1 to 19 were
identified and marked. After the close of the prosecution evidence, the
accused were examined under Section 313(1)(b) of the Code of Criminal
Procedure. They maintained the plea of innocence. On the side of the
defence, Exts.D1 to D7 were marked. After a full-fledged trial, the learned
Sessions Judge convicted the accused for the offences punishable under
Sections 326, 427 and 447 IPC, as aforesaid.
The submissions of the learned counsel for the appellants in Crl.
10. Adv. John S. Ralph, the learned counsel for the appellants in
Crl.Appeal No.382/2017, submitted that the trial court convicted the
appellants without properly appreciating the evidence. The prosecution has
failed to aver and prove the charge against the appellants beyond
reasonable doubt. The prosecution has failed to allege and prove the motive
for the commission of the crime.
11. The learned counsel for the appellants submitted that the
conviction under Section 326 IPC entered by the trial court is not legally
sustainable. No evidence is forthcoming to prove that the injury on the leg
of the deceased Varghese was inflicted by accused No.1 with MO-1
chopper. The conclusion of the trial court that the injury was caused to the
deceased by the fall of the gate on his leg. There is absolutely no evidence
for arriving at such a conclusion. The trial court has convicted and
sentenced the appellants on the basis of surmises and conjectures.
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12. The evidence of PWs.1, 2 and 6 is contradictory and
inconsistent, and therefore cannot form a basis for conviction. The
discrepancies, omissions and contradictions in their evidence were
overlooked by the learned Additional Sessions Judge.
13. The learned counsel would further submit that the medical
evidence adduced by the prosecution is inconsistent with the ocular
evidence and thereby the appellants are entitled to acquittal. The trial court
has failed to appreciate the defence version in its correct perspective.
14. The ingredients of Section 326 IPC were not proved by the
prosecution. The falling of a gate could not be considered as voluntarily
causing grievous hurt. Yet another argument advanced by the learned
counsel for the appellants is that the trial court has misconceived the real
purport of Section 222 of Cr.P.C. Section 326 IPC is not a minor offence of
Section 302 IPC. Therefore, an accused who is charged for the offence
punishable under Section 302 IPC cannot be convicted invoking Section
222 of Cr.PC, for the offence punishable under Section 326 IPC.
The submissions of the learned counsel for the appellant in Crl. Appeal
15. Adv. P. Vijayabhanu, Senior Counsel as instructed by Adv.
Reshma E. and Adv. Sruthy K.K., the learned counsel appearing for the
appellant in Crl.Appeal (V) No.09/2021 would submit that the trial court
without proper application of mind, acquitted the accused for the offences
punishable under Sections 294(b), 323, 324 and 302 read with Section 34
IPC and Section 27 of the Arms act. The learned counsel would further
submit that the evidence of PWs.1, 2 and 6 would convincingly prove that
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due to the animosity with the deceased and the material witnesses, the
accused attacked the deceased with deadly weapons like swords, sticks etc.
and inflicted injuries on the leg of the deceased. The trial court ought to
have found that the available evidence on record was sufficient to fasten
penal liability on the accused for the offence punishable under Section 302
IPC.
The submissions of the learned Public Prosecutor
16. Smt. Neema T.V., the learned Senior Public Prosecutor would
submit that the prosecution has proved the charge against the accused
beyond reasonable doubt. The trial court evaluated the evidence in the
correct perspective, and no interference is warranted in this matter. The
learned Public Prosecutor further submitted that the evidence of PWs.1, 2
and 6 is reliable and trustworthy.
The evidence let in by the prosecution
17. PW1 (Devassy) deposed that he is residing in his tharavadu
house alone, at Manakkapady near Aluva. On the western side of his
compound is the residential house of his elder brother, Varghese, the
deceased.
18. The incident occurred on 10.10.2010 at about 10.45 p.m., in
the courtyard of his tharavadu house. There is a compound wall in the
boundary of the property, within which his tharavadu house and the house
of his brother, Varghese are situated. There are four gates around the
property. The road is lying on the southern side of the property. He is a
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fabricator by profession.
19. On 10.10.2010, while he was reading the newspaper at about
10.45 p.m., he heard a sound from the southern side of his house. When he
went out of the house, he understood that accused No.1 (Jomon) was
pelting stones towards his house. He cried and called his brother, Varghese.
Varghese rushed to the place along with his sons, PW2 (Jojo) and PW6
(Aneesh). When questioned about the pelting of stones, accused Nos.1 to 4
trespassed into his house after pushing down the locked gate, carrying
weapons. Accused No.1 (Jomon) had cut and removed a branch of a tree.
In the meanwhile, the other accused also attacked them. In the meantime,
accused No.1 (Jomon) inflicted an injury on the right leg of the deceased
with MO-1 chopper.
20. PW1 would further depose that accused No.4 (Johnson) was
carrying a sickle and accused Nos.2 and 3 were carrying swords in their
hands and they had brandished the weapons. PW6 (Aneesh) tied the wound
of the injured, Varghese, and they boarded him into the back seat of their
car to take him to hospital. When PW6 moved the car behind, he and his
sister-in-law (PW7) opened the gate. At that time, the accused waylaid
them so as to prevent the injured from being taken to hospital. PW1
uttered the words "എന്നെ വേണമെങ്കിൽ എടുത്തോ എന്റെ ചേട്ടനെ വിട്ടേക്കൂ"
(leave his brother, and instead take his life). At that time, accused No.3
(Thomas) approached him and inflicted an injury on his right hand with a
sword. Meanwhile, PW6 (Aneesh) managed to drive the car and took the
injured to the Carmel Hospital. From Carmel Hospital, he was shifted to a
Specialist Hospital for expert management. At about 1.00 a.m., PW2
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informed him that Varghese succumbed to the injuries.
21. Thereafter, PW1 lodged Ext.P1 FIS before the Aluva Police.
He further stated that the accused are the sons of his paternal uncle. He
identified the accused and the weapons of the offence. He would say that
he witnessed the incident in the light of CFL lamps placed in front of his
house. He would further say that a civil litigation was pending in Aluva
court between the witnesses and the accused. Due to this animosity, the
appellants attacked them.
22. On being cross examined, he would say that he has not stated
before the police that in which leg of the deceased cut injury was inflicted.
He further added that he stated before the police that accused No.3(
Thomas) uttered the words "hack and kill". He has no explanation, if it is
not seen recorded by the police.
23. PW1 would further say that since he felt that his first
statement was incorrect, he gave a second statement to the police. When a
definite question was asked by the defence counsel to this witness whether
he is the plaintiff in O.S. No.307/1998 of the Munsiff Court, Aluva with
respect to the taking of water from a pond, he would reply that he does not
remember. He does not know whether a decree was passed by the Munsiff
Court Aluva in favour of the accused.
24. PW2 (Jojo) is the son of the deceased Varghese. He would
testify that the incident occurred at about 10.45 pm on 10.10.2010. At that
time, on hearing the sound of cries of PW1, his father proceeded to the
house of PW1. He and his brother were also rushed to the spot. When they
reached the place of occurrence, PW1 told the deceased that the accused
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pelted stones towards his house. He had seen the accused abusing PW1
using filthy language. When the deceased proceeded towards the gate and
the compound wall, the accused demolished the wall and gate. In the
meantime, accused No.1 (Jomon) cut and removed a tree standing inside
the compound. They brandished the swords and came near to the deceased.
Accused No.1 inflicted a cut injury on the right leg. The deceased caught
hold on the collar of the shirt of the accused No.1 and uttered the words
that accused No.1 hacked him. After tying the wound, they took the injured
to the hospital in a car. The accused tried to block the car and caused a
delay in taking the injured to the hospital. PW2 (Jojo) would further say
that they took the injured to the Carmel Hospital. The doctors in the
casualty referred him to Specialist Hospital, Ernakulam. They took the
injured in an ambulance to the Specialist Hospital. At about 12.45 am, the
doctors informed him that the injured had died. He identified the accused.
He asserted that there was sufficient light in the place of occurrence. He
identified MOs.1 to 4 weapons. He also identified MOs.5 and 6, the dresses
worn by the deceased at the time of the occurrence.
25. PW3 and PW4 are the attestors to Ext.P2 inquest report. PW5
is the Village Officer who prepared Ext.P4 site plan.
26. PW6 (Aneesh) is the younger son of the deceased Varghese.
He also deposed in the similar lines as that of PW2. PW7 (Lissy) is the
wife of the deceased Varghese. She testified that on hearing the cries of
PW1, her husband came out of their house and proceeded to the tharavad
house. PWs.2 and 6 followed him. She stood in the courtyard of the
deceased. While so, she heard the cries. After a short while, PWs.1, 2 and
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6 brought the injured to their house. The injured asked her "Lissy, call the
police, Jomon hacked me". They caused the injured to sit on the door
steps. Blood oozed from his leg. She went inside, took a cloth and gave it
to PW6. PW6 tied the wound and they took the injured to the hospital
27. PW8 is the witness to Ext.P6 to P9 recovery mahazars,
through which the weapons of the offence were recovered by the police. He
did not support the prosecution case. PW9 is the witness to Ext.P14
mahazar through which the dress of the deceased were seized. PW10 is the
attestor to Ext.P15 seizure mahazar through which the Contessa car was
seized. PW13 (Davis) is the Senior Civil Police Officer of Aluva Police
Station. He witnessed the recovery of weapons by the Inspector and put his
signature in Exts.P6 to P9 mahazars.
28. PW14 (Dr. T.P. Poulose) was examined to prove Ext.P16
wound certificate issued from the Specialist Hospital, Ernakulam. PW15
(Dr.Manoj K.C.) is the Junior Medical Consultant in Taluk Head Quarters
Hospital, Aluva, who examined PW1 (Devassy) on 11.10.2010 at about
12.30 p.m. with the history of assault on the previous night. He issued
Ext.P17 wound certificate and has noted an abrasion 5 x 0.5 cm over his
right arm. He opined that the injury could be caused by a weapon like
sword.
29. PW16 (Lali T.A.) is the Assistant Director of Regional
Forensic Laboratory, Thrissur. She examined the scene of occurrence and
collected the samples of blood stains. PW18 (Dr. Anwar) examined PW6
(Aneesh) on 12.10.2010 and issued Ext.P19 wound certificate. He has
noted an abrasion on the shoulder. PW19 is the Sub Inspector of Police,
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who registered Ext.P1(a) FIR on the basis of Ext.P1 FIS.
30. PW21 (Dr. P.K. Nazirudeen) was examined to prove Ext.P21
wound certificate of the deceased Varghese. PW22 (Dr. Sathi Kumar)
conducted the autopsy of the deceased and issued Ext.P22 postmortem
certificate. He has noted three ante-mortem injuries in the postmortem
certificate which are as follows:
i. Avulsed incised wound of size 6 x 3 x 5 cm transversely
obliquely on lower end of front of right leg curved with
convexity upwards and inwards lower outer end 4 cm above
lateral malleolus. The upper inner end 3 cm above medical
malleolus. The highest point of the wound on front of leg was 5
cm above ankle in midline front of leg. The wound avulsed the
entire skin and soft tissues underneath upto a depth of 5 cm. The
wound cut the skin, subcutaneous tissues, tendons, nerves and
blood vessels including anterior tibial artery and vein and
perforating branch of peroneal artery. There was cut 0.5 x 0.2 x
0.3 cm on front of tibial bone underneath the upper end of the
wound. The edges of the wound showed minimal contusion the
wound was directed downwards, backwards and to right.
ii. Abrasion of size 1 x 0.2 cm at front of right leg near to medial
malleolus.
iii. Abrasion of size 2 x 0.5 cm at lateral aspect of dorsum of right
foot 2 cm below ankle level.
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31. He opined that the cause of death is the injury sustained to the
right leg. He further opined that oozing of blood from arteries and veins
resulted in the death of the injured. Injury No.1 is grievous, dangerous and
prominent. Injury No.1 is sufficient to cause the death in the ordinary case.
32. PW23 (Dr. Meghana Rajan) examined the injured and she
proved Ext.P20 case sheet of the deceased in Specialist Hospital,
Ernakulam.
The Analysis
33. The learned Sessions Judge after a detailed evaluation of the
evidence, both oral and documentary, has arrived at a conclusion that the
prosecution has failed to prove the offences punishable under Sections 302,
323, 324 and 294(b) IPC and Section 27 of the Arms Act.
34. Now we shall proceed to evaluate the evidence on record in
the light of the arguments advanced by the learned counsels for the
appellants.
35. PW1 (Devassy) would testify that while he was reading the
newspaper at 10.45 p.m. on 10.10.2010, he heard a sound from the
southern house of his house. When he went out of the house, he realised
that accused No.1 (Jomon) was pelting stones towards his house. He cried
aloud and called his brother, Varghese. He rushed to the place of
occurrence. PWs.2 and 6 also reached the spot within a short while. When
questioned about the pelting of stones, accused Nos.1 to 4 trespassed into
his compound after pushing down the locked gate and the compound wall,
carrying weapons. Accused No.1 inflicted injury on the right leg of the
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deceased with MO-1, chopper.
36. PW1 would further assert that accused No.4 (Johnson) was
carrying a sickle and accused Nos.2 and 3 carrying swords in their hand
and they brandished the weapons. PW6 (Aneesh) tied the wound of the
injured, Varghese, and took him to the hospital in a Contessa car. At that
time, the accused attempted to block the car in order to delay the medical
assistance to the injured. However, PW6 managed to drive the car to take
the injured to Carmel Hospital. From there, he was referred to Specialist
Hospital, Ernakulam. He was declared dead at 1.00 am on the next day.
37. PW2 (Jojo) reached the place of occurrence within a short
while. He would say that when he reached the place of occurrence, PW1
(Devassy) told him that accused No.1 hacked the deceased. PW6 (Aneesh),
the younger son of the deceased also spoke in the similar lines as that of
PW2.
38. Now we shall proceed to examine whether the trial court is
justified in acquitting the accused for the offence punishable under Section
302 IPC.
39. The reasoning of the trial court is that the material witnesses
are the wife, children and brother of the deceased. They are close relatives
and had animosity with the accused in connection with a civil dispute.
Ext.D7 is the judgment in A.S. No.66 of 2002 of Additional Sub Court,
North Paravur. The dispute was with respect to the ownership and
possession of a pond. The learned Sessions Judge noted that even though
the accused got a decree in their favour, the deceased and the witnesses
prevented them from enjoying the fruits of the decree. The accused were
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not permitted to take water from the disputed pond.
40. The learned Sessions Judge, therefore, was of the view that the
evidence of interested / relative / partisan and inimical witnesses with
extreme care and caution.
41. The trial court was of the view that the material witnesses, that
is PWs.1, 2 and 6, reached the scene of occurrence only after the incident
took place. In other words, they had not seen the infliction of the alleged
cut injury by accused No.1 (Jomon). The trial court took the view that the
material witnesses had only heard the declaration by the deceased that
"Jomon inflicted a cut injury". Had they witnessed the incident, there
would have been no need for the injured to make such a declaration.
42. The trial court found that the material witnesses have
considerably improved and embellished their version by giving substantive
evidence. In their previous statement before the police, they would say that
the assailants were carrying swords. But when they realised that injury
No.1 noted in the postmortem certificate could not be caused by a sword,
they changed their version and deposed that the injury was inflicted with
MO-1 chopper.
43. The trial court has placed reliance on the decision of the Apex
Court in Harbeer Singh v. Sheepal1, wherein it was held that the criminal
court has to examine the evidence very carefully in case of related and
inimical witnesses.
44. The learned counsel appearing for the victim invited the
attention of this Court to the dictum laid down in State of Uttar Pradesh
2017 Crl.L.J 169
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v. Jai Dutt and others2 and Mulavani Kannan and another v. State of
Kerala3, to contend that the trial court ought to have found the accused
guilty under Section 302 IPC and the conviction under Section 326 IPC
alone is unjustifiable. We are unable to accept the said contention.
45. In Jai Dutt (supra), several injuries were inflicted on the head
and the deceased died due to the head injury. Therefore, the Apex Court
reversed the finding of the High Court convicting the accused therein under
Section 326 IPC and restored the findings of guilt of the trial court under
Section 302 IPC.
46. In Mulavani Kannan and another (supra), the assailants
therein inflicted several injuries on the vital parts of the body of the
victims.
47. In the instant case, the only injury inflicted is on the leg, even
though all the assailants carried weapons with them. Therefore, the trial
court rightly held that the assailants have no intention to cause the death of
the victim or to cause such bodily injury which is sufficient in the ordinary
course to cause death.
48. Hence, we are of the considered view that the trial court is
justified in acquitting the accused under Section 302 IPC.
49. Now, we shall proceed to analyse whether the ingredients of
Section 326 IPC are attracted. PW22 (Dr. Sathi Kumar), who conducted the
autopsy, has noted that injury No.1 is grievous, prominent and dangerous.
He has noted an avulsed incised wound having a size of 6 x 3 x 5 cm on the
lower end of right leg.
2022(3) SCC 184
1999 ICO 5583
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50. Based on the nature of the injuries and the evidence of PW22,
the learned Sessions Judge took the view that the ingredients of Section
326 IPC are attracted in the instant case.
51. The learned counsel for the appellant in Crl. Appeal No.382 of
2017 would urge that the conviction is unsustainable under Section 326
IPC, since the said Section is not a minor offence of Section 302 IPC.
Before further discussion it may be useful to extract Section 222 of Cr.P.C.
222. When offence proved included in offence
charged.--(1) When a person is charged with an offence
consisting of several particulars, a combination of some only of
which constitutes a complete minor offence, and such
combination is proved, but the remaining particulars are not
proved, he may be convicted of the minor offence, though he was
not charged with it.
(2) When a person is charged with an offence and facts are
proved which reduce it to a minor offence, he may be convicted
of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be
convicted of an attempt to commit such offence although the
attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a
conviction of any minor offence where the conditions requisite for
the initiation of proceedings in respect of that minor offence have
not been satisfied.
52. Section 222 Cr.P.C. permits the court to convict a person of a
minor or lesser offence, if the facts proved in Court are insufficient to
prove the charged major offence, but sufficient to establish a minor one.
53. In Kesani Murahari Rao v. State of Andhra4, a bench of
three Judges of the Apex Court opined that the conviction is sustainable
(1956) 2 SCC 820
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under Section 326 IPC, even if there was no charge under Section 326 IPC,
when the accused is charged under Section 302 IPC. It was observed that
no prejudice could be caused to the accused because they were charged
with more serious offence. Paragraph No.10 of the Kesani Murahari Rao
(supra) reads as follows:
10. The real question in this appeal is whether any of the
appellants can be convicted of any substantive offence by the use
of Section 149 IPC? The 11th charge against the appellant
Venkateswarlu and Accused 7, 8, 10, 11 and 13 was under
Sections 302/149 IPC in connection with the murder of
Panakalayya and Subbarao. No charge under Section 149 IPC for
these murders was framed against the appellants Murahari Rao,
Jogaiah, Ramaiah, Prahlada Rao, Venkatappaiah and Raghavaiah
because they had been charged under Section 302 IPC for the
murder of the aforesaid persons. The 12th charge was against the
appellants Murahari Rao, Jogaiah and Ramaiah under Sections
324/149 for causing hurt by means of dangerous weapons to
members of the prosecution party and the 13th charge was against
the appellants Jogaiah, Prahlada Rao, Venkatappaiah and
Venkateswarlu under Sections 326/149 IPC for causing grievous
hurt by means of dangerous weapons to members of the
prosecution party. It will be seen, therefore, that the charges
framed in the case gave ample notice to the accused that they
could be convicted of substantive offences under the Penal Code
by the application of Section 149 or otherwise. All the appellants
and the other accused at the trial were undoubtedly members of an
unlawful assembly with the common object to beat persons on the
prosecution side. Murder, grievous hurt and hurt caused by
dangerous weapons were undoubtedly, caused in prosecution of
the common object. There could be no doubt that persons on the
side of the accused were armed with deadly weapons and each
member of the unlawful assembly must have known that at least
grievous hurt was likely to be caused to the persons on the
prosecution side. Therefore, the appellants and the members of the
unlawful assembly were liable to be convicted under Section 326
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read with Section 149 IPC. It is true that no specific charge under
Sections 326/149 IPC has been framed against all the appellants,
but failure to do so has caused no prejudice to the appellants
because they were charged for a more serious offence. Having
regard to the evidence in the case, it is not possible to come to any
safe conclusion that the common object of the unlawful assembly
was to kill Panakalayya and Subbarao. In our opinion, the
appellants, other than Ramaiah, are guilty under Sections 326/149
IPC and they should have been so convicted. All the appellants,
except Ramaiah, are, therefore, convicted under Sections 326/149
IPC and the conviction of the appellants under Sections 302/149 is
accordingly set aside.
54. In State of U.P. v. Ram Kishun5, the Apex Court reiterated
the same principle.
55. In view of the judgment in Kesani Murahari Rao (supra) and
Ram Kishun (supra), we are of the view that the conviction under Section
326 IPC is sustainable even though there is no specific charge under that
Section. The appellants were charged with a more serious offence that is
under Section 302 IPC. Therefore, no prejudice could be caused to the
appellants. Having regard to the evidence in this case, it is not possible to
arrive at a safe conclusion that the accused have common intention to cause
the murder of Varghese, instead, as rightly held by the learned Sessions
Judge, to cause grievous hurt to him. Even though all the appellants were
armed with deadly weapons, only one injury was inflicted by them.
Conclusion
56. In the light of the above discussions, we are of the considered
(1976) 3 SCC 449
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opinion that both the appeals lack merits and liable to be dismissed. The
trial court has rightly held that the prosecution has failed to prove the
offence charged under Section 302 IPC. However, the evidence adduced by
the prosecution is sufficient to convict the appellants under Section 326
IPC. The trial court rightly appreciated the evidence on record and
separated the grain from the chaff and arrived at a proper conclusion, in our
view.
In the result,
i. The Crl. Appeal No.382 of 2017 and Crl. Appeal (V) No.09 of
2021 are dismissed.
ii. The conviction and sentence imposed by the learned Sessions
Judge under Section 326 read with Section 34 of IPC are
confirmed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
BR
