The High Court of Kerala at Ernakulam dismissed an appeal against conviction under Section 308 IPC for attempted murder. The court upheld the lower court's finding that eye-witness evidence and medical reports established the accused inflicted the injury.
The criminal appeal was dismissed, and the judgment of the lower court was affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 3RD DAY OF NOVEMBER 2015/12TH KARTHIKA, 1937
CRL.A.No. 62 of 2009
AGAINST THE JUDGMENT IN SC 100/2006 of I ADDITIONAL SESSIONS COURT, ERNAKULAM DATED 06-12-2008
APPELLANT/ACCUSED:
JOHNNY, S/O.POULOSE, NARIYELY VEEDU, NEAR PANCHAYAT WELL, PRALAYAKKAD KARA, VENGOOR WEST VILLAGE.
BY ADVS.SRI.S.GIRISH
SRI.HARIDAS
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KURUPPAMPADY THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SMT. LILLY LESLIE, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.BHAVADASAN, J.
Crl. Appeal No.62 OF 2009
Dated this the 3rd day of November, 2015.
J U D G M E N T
The accused was prosecuted for the offence punishable under Section 308 of Indian Penal Code. He was found guilty and was therefore convicted and sentenced to suffer imprisonment for three years. Set off as per law was allowed.
his cries, PWs 2 and 3 reached the place. At that time, the accused ran away with the chopper in his hand to his house.
2
Crl. Appeal No.62/2009
PW2, Thampi removed PW1 to the hospital. PW4, the Doctor attached to Taluk Head Quarters, Perumbavoor attended to the victim and prepared Ext.P2 wound certificate. PW6, at the relevant time, was the Head Constable of Kuruppumpedi Police Station. On 09.10.2005, he received an intimation from Perumbavoor Taluk hospital about the injured victim and on getting information, he went to the place and recorded the statement of PW1. Ext.P1 is the said statement. He returned to
the Station and on the basis of Ext.P1 registered Crime No.397/2005 as per Ext.P1(a) First Information Report.
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cognizance of the offence and finding that the offence is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Ernakulam under Section 209 Cr.P.C after following necessary procedures. The said court made over the case to 1st Additional Sessions Court, Ernakulam for trial and disposal. The latter court, on receipt of records and on appearance of the accused, framed charge for the offence under Section 308 IPC. To the charge, accused pleaded not guilty and claimed to be tried.
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up. He filed a complaint against them. Thereafter it is stated by the accused that PW1 entered his house and pulled him out and again beat him up. In the scuffle that followed, PW1 fell down and suffered injury on his head. He got himself admitted in hospital.
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taken proper note of by the court below. It was urged that there is no evidence to show that there was any light in the place of incident and therefore PW1 could not have recognised his assailant. It is also contended that no motive as such is established. Even though it is stated that accused is a nuisance in the locality and mass representation is filed against him, there is no evidence regarding the same. The inherent improbabilities of the case and the omission in the evidence of PWs 2 and 3 have not been property appreciated. It is contended that on a close reading of the evidence of PWs 1 to 3, it can be easily seen that PWs 2 and 3 could not have actually seen the incident. Therefore, PWs 2 and 3 could not be said to be eye witness to the incident. These aspects have been omitted to be looked into by the court below and that vitiates the conviction.
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The version given by the accused that in the scuffle, PW1 had fallen down and his head hit against a stone is belied by the wound certificate. In spite of cross examination of PWs 1 to 3, nothing is found out to show that there is any reason to falsely implicate the accused. Further, the First Information Report came into existence soon after the incident and there is no delay regarding the same. The medical evidence also supports the prosecution case. In short, the court below has rightly found the accused guilty and no grounds are made out to interfere with the conviction.
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by M.O.1 weapon.
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signatory to that petition. PW1 would say that it was that which had annoyed the accused which resulted in an attack on him. He further says that his statement was taken by the Police from the hospital and Ext.P1 is that statement.
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claims that he is the neighbour of both the accused and the victim. He would say that when he got out from his house and entered into a road to go to shop, he saw PWs 1 and 2 going along and he claims to have seen the accused coming outside his house and no sooner than PW1 had passed the house of the accused, accused attacked him with a chopper and as a result of the attack when PW1 was about to fall down he was helped by PW3. He would also say that he called an auto and PW2 had taken the accused to the hospital. He too identified M.O.1 as the weapon used by the accused. He would say that a complaint had been filed against the accused by the inhabitants of the locality. PW1 had signed on the same. The accused drinks a lot and creates annoyance in the locality. All the three witnesses, PWs 1 to 3, do say about the same. The defence set up is that PWs 1 and 2 used to buy things on credit from the bunk shop run by the accused and when he sought for money in front of some people, PWs 1 and 2 felt humiliated. The accused would say that he was
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beaten near his bunk shop and later on PW1 is said to have entered his house and pulled him out and again beaten him and there was a scuffle between them in which PW1 happened to fell down and his head hit against a stone and suffered a bleeding injury. Except for the statement made by the accused, there is no evidence regarding the above aspect. Further, recovery of M.O.1 based on the confession statement made by PW1 is yet another incriminating circumstance against the accused. As soon as intimation was received from the hospital, PW6 had registered a case and investigation was conducted by PW7.
namely, PWs 1 to 3 do say about annoyance caused by the accused in the locality and also that the people were fed up with him. They say about having filed a complaint before Police and PW1 having signed on the same. Even though PWs 1 to 3 were cross examined at length, they stood by their ground and there is nothing to show that they had any reason to falsely implicate the accused. There is nothing brought out in their evidence to show
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that they are not speaking truth. Further, as already stated, PW1 is the injured witness and unless it is shown that there are compelling reasons to disbelieve him, his evidence cannot be ignored. In this case, he gets support from other witnesses and so also from the medical evidence.
judgment of the court below and the appeal is only to be dismissed. I do so.
Sd/-
P.BHAVADASAN JUDGE
smp
// True Copy //
P.A to Judge.
3 issues framed by the court
Whether the High Court should interfere with the conviction of the accused under Section 308 IPC despite the appellant's challenge regarding contradiction in evidence.
Whether the evidence of eye-witnesses PWs 1 to 3 was convincing to conclude that the accused caused the injury.
Whether the court below erred in omitting to note the inherent improbabilities and lack of motive in the prosecution case.
2 provisions across 2 enactments
Johnny
The State of Kerala
P.Bhavadasan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
