Kerala High Court

Deepu Etc vs State Of Kerala on 12 September, 2025

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Crl. Appeal No. 2216/2009
                                                      2025:KER:67725


                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                  THE HONOURABLE MR. JUSTICE JOHNSON JOHN

          FRIDAY, THE 12TH DAY OF SEPTEMBER 2025 / 21ST BHADRA, 1947

                            CRL.A NO. 2216 OF 2009

JUDGMENT DATED 23.10.2009 IN SC NO.144 OF 2009 OF ADDITIONAL
SESSIONS COURT (ADHOC)-II, ERNAKULAM
CP NO.52 OF 2005 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM

APPELLANTS/A1 & A2:

      1      DEEPU, AGED 29, S/O.DANANJAYAN, PARAYANTHANATHU HOUSE,,
             KOZHIVETTUMVELI,EROOR.

      2      UDAYABHANU @ UDAYAN,
             AGED 54, S/O.KARUNAKARAN, PARAYANTHANATHU HOUSE,
             KOZHIVETTUMVELI, EROOR.


             BY ADV SRI.C.P.UDAYABHANU


RESPONDENT/COMPLAINANT:

             STATE OF KERALA, REPRESENTED BY THE C.I.OF POLICE, (CRIME
             NO.374/05), HILL PALACE POLICE STATION, REPRESENTED BY THE
             PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.

      SMT. HASNAMOL N.S., PUBLIC PROSECUTOR



       THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.09.2025, THE

      COURT ON 12.09.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 2216/2009
                                                       2025:KER:67725

                                                                 'C.R'
                            JOHNSON JOHN, J.
           ---------------------------------------------------------
                       Crl. Appeal No. 2216 of 2009
            ---------------------------------------------------------
                Dated this the 12th day of September, 2025

                                  JUDGMENT

This appeal is against the judgment in S.C. No. 144 of 2009 on the

file of the Additional Sessions Judge, Adhoc-II, Ernakulam. As per the

impugned judgment, the first accused is convicted and sentenced under

Section 307 IPC to undergo rigorous imprisonment for 7 years and to

pay a fine of Rs.10,000/- and the second accused is convicted and

sentenced under Section 323 IPC to undergo simple imprisonment for

two months.

2. During the pendency of the appeal, the second accused died

and since fine does not form part of the sentence against the second

accused, the appeal of the second accused is treated as abated.

3. As per the prosecution case, the accused were having enmity

towards PW2 for the reason that he had questioned their unauthorised

sale of liquor and on 06.08.2005, at about 10 p.m., there occurred an

altercation between the second accused and PW2 about the

unauthorised sale of liquor by the second accused in front of the

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residence and shop of PW2 at Kozhyvettumveli and then the second

accused beat on the left cheek of PW2 and the first accused stabbed

PW2 with a knife on the right abdomen resulting in the protrusion of

intestine through the wound. The accused are alleged to have committed

the overtacts in furtherance of their common intention to murder PW2

and thereby, committed the offences punishable under Sections 323 and

307 r/w 34 IPC.

4. Before the trial court, when the accused persons pleaded not

guilty to the charge, the prosecution examined PWs 1 to 12 and marked

Exhibits P1 to P17 and MOs 1 to 5. From the side of the defence, DW1

examined and Exhibit D1 marked.

5. After considering the oral and documentary evidence on record

and hearing both sides, the trial court found the first accused guilty

under Section 307 IPC and the second accused guilty under Section 323

IPC.

6. Heard Sri. C.P. Udayabhanu, the learned counsel for the first

appellant/first accused and Smt. Hasnamol N.S., the learned Public

Prosecutor.

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7. The learned counsel for the first appellant/first accused argued

that even as per the prosecution case, the initial altercation was between

the second accused and PW2 and the evidence of PWs 1 and 2 as

against the first accused is not wholly reliable and the prosecution has

failed to examine independent witness to prove the occurrence and

therefore, the accused is entitled for the benefit of reasonable doubt.

8. The learned Public Prosecutor argued that the evidence of the

injured, PW2, is supported by the evidence of PW1, wife of the injured

and eye witness to the occurrence, and there is no material contradiction

in their evidence regarding the occurrence and that their evidence is

also corroborated by the medical evidence and the recovery of MO1,

knife, on the basis of the disclosure statement of the first accused and

therefore, the appeal is liable to be dismissed.

9. The evidence of PWs 1 and 2 shows that the incident occurred

at about 10 p.m. on 06.08.2005 in front of their residence and that there

occurred an altercation between PW2 and the second accused about the

unauthorized sale of liquor by the second accused and then the second

accused beat PW2 on the left cheek and the first accused, who rushed to

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the scene, stabbed PW2 with MO1 knife on the right side of the

abdomen. PWs 1 and 2 identified MO1 as the knife used by the first

accused to stab PW2.

10. The evidence of PW3, Casualty Medical Officer of the Medical

Centre Hospital, Ernakulam, who examined PW2 at about 10.45 p.m., on

06.08.2005 and Exhibit P2, wound certificate, shows that PW2 sustained

incised wound 6 x 2 cm in right lumbar region with intestine and

omentum hanging outside.

11. The evidence of PW4, the Surgical Gastroenterologist of

Medical Centre Hospital, Ernakulam, also shows that PW2 was admitted

to the hospital in a very serious condition following the stab injury and

he was subjected to major operation. PW4 also deposed that the stab

injury sustained by PW2 could be caused by MO1 knife.

12. The evidence of PW10, Sub Inspector who arrested the first

accused on 21.08.2005, shows that on the basis of Exhibit P9(a)

information received from the first accused, he went along with the

accused to the house of a relative of the accused in Aluva and from

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there the accused took out MO4, shirt, and MO5, dothi, worn by him at

the time of occurrence.

13. The relevant portion of the disclosure statement of the first

accused is marked as Exhibit P9(a). The evidence of PW10 further

shows that Exhibit P5(a) disclosure statement of the first accused led to

the recovery of MO1, knife. The evidence of PW10 regarding the

recovery of MO1, knife, on the basis of the disclosure statement of the

first accused is corroborated by PW7, an attestor to Exhibit P5 mahazar.

PW7 deposed that the first accused took out MO1 knife from a thicket

near Kozhyvettumveli junction at about 1.30 p.m., on 22.08.2005 and

at that time, he was accompanied by police.

14. A perusal of Exhibit P13, copy of the forwarding note, and

Exhibit P14, report from the Forensic Science Laboratory,

Thiruvananthapuram, shows that bloodstains were detected on MOs 1

and 5 i.e., item Nos. 5 and 3. The report further shows that the blood

detected on MOs 1 and 5 is human blood belonging to the group 'O'. It

is pertinent to note that as per the the prosecution case, MO5 is the

saffron coloured lungi worn by the first accused at the time of

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occurrence and MO1 is the knife used by the first accused for stabbing

PW2. At the time of 313 questioning, the first accused has not given

any satisfactory explanation for the presence of human blood belonging

to group 'O" in Mos 1 and 5.

15. In Balu Sudam Khalde and another v. State of

Maharashtra [2023 Livelaw (SC) 279], the Honourable Supreme Court

held that the following legal principles are required to be kept in mind,

while appreciating the evidence of an injured witness:

"(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.

(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.

(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.

(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.

(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction,

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exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.

(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."

16. On careful re-appreciation of the entire evidence, I find that

the evidence of PWs 1 and 2 regarding the occurrence is natural and

consistent with the case of the prosecution. Even though PWs 1 and 2

were seriously cross examined, the core spectrum of the case remained

intact throughout the cross examination and they have not given room

for any doubt as to the material particulars deposed by them in relation

to the place of incident, the genesis of the incident and the overtacts

attributed against the accused persons. The evidence of PWs 1 and 2

has correlation with each and every other supporting evidence, including

the medical and scientific evidence in this case. Therefore, I find no

reason to disagree with the the finding of the trial court in this regard.

17. The learned counsel for the first accused/first appellant

argued that the ingredients of the offence under Section 307 IPC is not

attracted, in as much as there is no evidence to show that the injury

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inflicted was capable of causing death or that the accused inflicted the

injury with the intention to cause the death of PW2. It is argued that the

initial altercation was between PW2 and the second accused and even as

per the the prosecution case, the first accused reached there only

subsequently.

18. But, the learned Public Prosecutor argued that the intention of

the accused is to be gathered from the circumstances like the nature of

the weapon used, nature of the injury inflicted, parts of the body where

the injury was caused and to justify a conviction under Section 307 IPC,

it is not essential that fatal injury capable of causing death should have

been caused.

19. In State of M.P v. Kashiram [AIR 2009 SC 1642], the

Honourable Supreme Court held that for attracting conviction under

Section 307 IPC, it is not essential that bodily injury capable of causing

death should have been inflicted and that the Section makes a

distinction between the acts of the accused and its result, if any. The

court has to see whether the act, irrespective of its result, was done with

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the intention or knowledge and under circumstances mentioned in the

section.

20. In State of Maharashtra v. Balram Bama Patil [(1983) 2

SCC 28, it was held that whether there was intention to kill or knowledge

that death will be caused is a question of fact and would depend on the

facts of a case. It was also held that the circumstances that the injury

inflicted by the accused was simple or minor will not, by itself, rule out

application of Section 307 IPC and the determinative question is the

intention or knowledge, as the case may be, and not the nature of the

injury.

21. In R. Prakash v. State of Karnataka [(2004) 9 SCC 27],

the Honourable Supreme Court held as follows:

"9. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the

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intention or knowledge and under circumstances mentioned in the section."

22. In Jage Ram v. State of Haryana [(2015) 11 SCC 366], it is held as follows:

"12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc."

23. In State of M.P. v. Kanha [(2019) 3 SCC 605], it is held as follows:

"13. The above judgements of this Court lead us to the conclusion that proof of grievous or life - threatening hurt is not a sine qua non for the offence under S.307 of the Penal Code. 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."

24. In State of Madhya Pradesh v. Saleem [(2005) 5 SCC

554], the Honourable Supreme Court held as follows:

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"12. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted.

Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.

13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. 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. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt."

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25. In Bipin Kumar Mondal v. State of W.B. [(2010) 12 SCC

91], it is held as follows:

"23. In Shivji Genu Mohite v. State of Maharashtra [(1973) 3 SCC 219 : 1973 SCC (Cri) 214 : AIR 1973 SC 55] this Court held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eyewitness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eyewitnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eyewitness is rendered untrustworthy."

26. I have carefully considered the evidence of PWs 1 and 2

regarding the occurrence and the nature of injuries as noted in Exhibit

P2 wound certificate and also the nature of MO1, knife, used by the first

accused and I find no reason to disagree with the finding of the trial

court that the first accused inflicted the stab injury on PW2 with the

intention to kill PW2 and with the knowledge that death will be caused

and therefore, I find that the trial court rightly convicted the first

accused for the offence under Section 307 IPC. Considering the

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seriousness and gravity of the offence committed by the first accused, I

also find no reason to interfere with the sentence and therefore, the

conviction and sentence as against the first appellant/first accused is