Dismissed

Binu v. State of Kerala

Kerala HC3 Oct 2016CRL.A/306/2009

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal against conviction and sentence for grievous hurt under Section 326 IPC and the Scheduled Castes (Prevention of Atrocities) Act. The court upheld the trial court's finding that the appellant acted with common intention to inflict severe injuries on two women, resulting in serious fractures.

What did the court decide?

Criminal appeal dismissed; conviction and sentence under Section 326 IPC affirmed.

Binu Vs State of Kerala — Caste Atrocities | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938

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CRL.A.No. 306 of 2009 ( )

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SC 735/2006 of THE SESSIONS COURT, PATHANAMTHITTA

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APPELLANT/IST ACCUSED:

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BINU, S/O.JOHN, AGED 30, PALAPARAMBIL VEEDU, CHALAKUZHI, KAVUMBHAGAM VILLAGE, THIRUVALLA.

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BY ADV. SRI.S.RAJKUMAR

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RESPONDENT:

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

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BY SR.PUBLIC PROSECUTOR SRI.C.S.HRITHWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/7/10/16

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B. KEMAL PASHA, J

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====================== Crl.Appeal No.306 of 2009

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=======================

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Dated this the 3^rd day of October, 2016

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J U D G M E N T

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Appellant is A1 in SC No.735 of 2006 of the Sessions Court, Pathanamthitta, who stands convicted under Section 326 IPC and sentenced to undergo rigorous imprisonment for five years and directed to pay an amount of 50,000/- to PW1 and PW3 as₹ compensation, in default to undergo simple imprisonment for one year.

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The appellant along with three other

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accused persons were indicted in Crime No.195 of 2005 of the Thiruvalla Police Station, for the offences punishable under Sections 326, 307 and 341 read with Section 34 IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Crl.A.No.306/09

Act.

The prosecution case is that the appellant

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along with the other accused, in furtherance of their common intention, on 12.03.2005 at 4.15 p.m., uttered the caste name of PW1 and PW3, and A4 handed over MO1 sickle shaped chopper to A1 and loudly directed A1 to 'cut and exterminate PW1 and PW3, who are members of Scheduled Caste'. A1 obtained MO1 from A4 and A1 along with A2 ran towards PW1 and PW3, who were walking through the road, with the two small children of PW3. PW1 is the mother PW3. PW1 was holding the younger child of PW3, aged two months. PW4 alerted them by saying that A1 was approaching them with the chopper for inflicting cut injuries on them. Even though they tried to move away, A1 could inflict severe cuts on PW1 with MO1. PW3 rushed to her and took custody of her small child from PW1 and PW3 attempted to run away with her children. A1, after indiscriminately inflicting

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series of cut injuries on PW1, chased PW3 and he indiscriminately inflicted severe cut injuries on PW3 also. In order to save the child, PW3 dropped the child to the nearby property and thereafter, she fell down.

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PW11 Sasi, took PW1 and PW3 to the autorickshaw of PW12 and proceeded to the hospital. PW2 Assistant Surgeon at the Taluk Hospital, Thiruvalla examined PW1 and PW3, and prepared and issued Exhibits-P2 and P1 wound certificates respectively. As the injuries were serious, they were referred to the Medical College Hospital, Kottayam. They continued treatment as in-patient at the Medical College Hospital, Kottayam and PW3 was discharged on 08.04.2005 only.

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Based on Exhibit-P9 First Information Statement furnished by PW9 before PW17 Additional Sub Inspector of Police, Thiruvalla, PW17 registered the Crime though Exhibit-P9(a) First Information Report. The investigation was taken over by PW18

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Deputy Superintendent of Police. PW19 Deputy Superintendent of Police continued the investigation. He placed the accused under arrest on 30.08.2005 and seized MO1 chopper through Exhibit-P12 mahazar. PW20 Deputy Superintendent of Police completed the investigation and filed the final report on getting Exhibit-P17 FSL report.

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On the side of the prosecution, PW1 to PW20 were examined, Exhibits P1 to P17 were marked and MOs 1 to 5 were identified. Exhibits D1 to D3 were marked on the side of the accused being contradictions in the statements of PW1 and PW3 under Section 161 Cr.P.C.

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The accused were examined under Section 313 Cr.P.C. The appellant denied the incriminating circumstances appeared in the evidence against him and contended that he was innocent. The prosecution and the accused were heard. Since no grounds were made out to acquit the accused under Section 232

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Cr.P.C., they were called upon to enter on their defence. No defence evidence was adduced. Again the prosecution and the accused were heard. The court below acquitted A2 to A4 and found A1/appellant guilty of the offence punishable under Section 326 IPC, convicted him thereunder, and sentenced him as aforesaid.

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Heard the learned counsel for the appellant and the learned Senior Public Prosecutor.

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The learned counsel for the appellant has argued that there is no independent evidence to corroborate the versions of PW1 and PW3 regarding the incident and therefore, PW1 and PW3 being interested witnesses, a conviction cannot be entered on the basis of their interested testimonies. It is also argued that there is no sufficient evidence to convict the accused for the offence under Section 326 IPC.

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Per contra, the learned Senior Public Prosecutor has pointed out that, in fact, the court

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below has committed a grave error in acquitting the appellant for the offence under Section 307 IPC. It has been pointed out that very serious injuries were inflicted on PW1 as well as PW3 and that PW3 had, in fact, made a narrow escape. It has also been pointed out that PW3 had to undergo prolonged treatment from 12.03.2005 to 08.04.2005 for a recovery at the Medical College Hospital, Kottayam.

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The learned counsel for the appellant has taken this Court through the entire evidence in the case. This Court has carefully considered the versions of PW1 and PW3 relating to the incident. The versions of PW3 clearly corroborate the versions of PW1. Exhibit-P9 is the First Information Statement furnished by PW-11. The contents of Exhibit-P9 also corroborate the versions of PW1 and PW3. According to PW1, while she along with PW3 and the two small children of PW3 came to the road from their house at 3 p.m., on 12.03.2005, they were alerted by PW4 by stating

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that A1 was approaching them with the chopper. From the evidence of PW1 and PW3, it is evident that the appellant and his family members were entertaining enmity towards PW1 and PW3. PW1 and PW3 were being frequently harassed by the appellant. The appellant had, in fact, demolished the boundary wall of the property of PW1 and PW3. PW1 is a widow. She was residing along with her daughter PW3, the two small children of PW3 and the husband of PW3.

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The husband of PW3 was not present at the house on the fateful day.

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On the previous day to the date of incident, PW1 and PW3 were tortured and harassed by the appellant and consequently, they preferred a complaint at the Police Station against the appellant. On the date of incident, by about noon, two Policemen from the Thiruvalla Police Station reached the place

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for making an enquiry. On seeing the Policemen, the appellant took to heels and escaped. The Policemen

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returned to the Police Station. Thereafter, A1 reappeared for attacking PW1 and PW3. The evidence of PW1 and PW3 clearly proves that A1 ran towards PW1 with MO1 sickle shaped chopper and indiscriminately inflicted a series of cuts on the head and body of PW1 with MO1. PW1 was holding the two months old child of PW3. She stooped and squatted with child for preventing injuries to the child. Even then, injuries were inflicted on her back. Immediately PW3 rushed to PW1 and took custody of the child from her and PW3 ran away from the spot. When PW1 fell down, leaving her, the appellant chased PW3 with MO1 and he inflicted a series of cut injuries on the head and body of PW3. PW3, with a view to preventing injuries to the small child, dropped her child into the nearby property and thereafter, she fell down.

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It is true that the appellant could win over

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all the other witnesses, who belong to the very same locality and who are none other than the immediate

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neighbours of the appellant as well as PW1 and PW3.

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PW4 has clearly stated that she could find PW1 lying in a pool of blood with injuries. PW7 and PW8 have also turned hostile to the prosecution regarding the incident; but stated that they could see PW1 and PW3 lying with injuries. PW11 took PW1 and PW3 to the hospital by the autorickshaw of PW12. PW12 have also supported the prosecution. At the same time, both PW11 and PW12 have stated that they did not know as to who inflicted the injuries on PW1 and PW3. They are also immediate neighbours of the appellant as well as PW1 and PW3.

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PW2, Assistant Surgeon of the Taluk Hospital, Thiruvalla, has proved Exhibit-P1 and ExhibitP2 wound certificates. Exhibit-P1 is the wound certificate of PW3. Exhibit-P2 is the wound certificate of PW1. Exhibit-P1 shows (i) laceration 10x2 cms on

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the scalp on frontal region, (ii) laceration on left wrist with bone exposed, (iii) laceration on occipital region

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of scalp and (iv) laceration on left forearm 6x2 cms. Exhibit-P2 shows (i) laceration on left frontal region of scalp exposing the frontal bone with fracture of the bone, (ii) Incised wound on right intramammary region 4x2 cms, (iii) Incised wound on scalp (parietal region) exposing the skull with parietal bone fracture and (iv) Penetrating wound on right intrascapular area.

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PW2 have clearly proved the aforesaid injuries found on the body of PW1 and PW3. PW2 referred PW1 and PW3 to the Medical College Hospital, Kottayam, since the injuries were serious. It seems that thereafter, PW1 and PW3 were attended by PW14, Assistant Professor of Orthopeadics, Medical College Hospital, Kottayam. He proved Exhibit-P13 discharge certificate of PW3. He proved the injuries found on PW3. According to him, PW3 had sustained (i) Incised wound 6x3x1 cms dorsum of the left wrist cutting the carpal bones and base of 1^st matacarpal, (ii) Laceration on proximal forearm left 10x6x5 cms,

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(iii) Incised looking wound palmar aspect of left hand 4x1x.5 cms cutting flexor digitorum superficialis (tendom). (iv) Incised looking wound 3x1x.5 cms radial aspect of left ring finger cutting the F.D.P. (tendon) of ring finger, (v) Incised looking wound 12x1x.5 cms cutting scalp and outer table of skull, (vi) C.T.Scan showed heammorrhagic contusion of the right high frontal region with bone fragment and (vii) Undisplaced fracture of right frontal and parietal bone. When MO1 was shown to him, PW17 has clearly deposed that all the said injuries could be caused by using MO1 weapon.

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There is absolutely nothing to disbelieve the versions of PW2, the contents of Exhibit-P1 and Exhibit-P2 and the versions of PW17, and the contents of Exhibit-P13. The evidence of PW2 and PW13, and the contents of Exhibit-P1 and Exhibit-P2 and ExhibitP13, clearly corroborate the evidence of PW1 and PW3. The fact that the other occurrence witnesses

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cited by the prosecution had turned hostile to the prosecution, does not militate against the prosecution case. It is evident that the other eye witnesses might have been threatened and terrorised by the appellant.

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The brutal manner, in which the appellant had caused the injuries found on PW1 and PW3, have been clearly spoken to by PW1 and PW3. Exhibit-P9 First Information Statement furnished by PW9, which was recorded by PW17, also clearly corroborate the versions of PW1 and PW3. Both PW1 and PW3 have sustained very serious injuries. PW3 sustained serious fractures on her occipital bone as well as parietal bone. Portions of the skull became fragments. She had a narrow escape from death.

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As rightly pointed out by the learned Senior Public Prosecutor, the court below has committed a grave error in not convicting the appellant for the offence under Section 307 IPC. At this belated stage, this Court is of the view that it is

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not just and proper in the interest of justice to register a Crl.R.P. suo motu. At the same time, it is evident that all the ingredients of an offence under Section 326 IPC have been made out by the prosecution. The court below has convicted the accused for the offence under Section 326 IPC alone. There is absolutely nothing to interfere with the conviction passed by the court below for the offence under Section 326 IPC.

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Regarding sentence, even though the

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learned counsel for the appellant has sought for leniency of this Court in sentence, this Court is of the view that the sentence imposed by the court below is proportionate to the gravity of the matter. The manner, in which, the accused has inflicted the injures on PW1 and PW3, the seriousness of the injuries and the fact that the court below has committed a grave error in not convicting the accused for the offence under Section 307 IPC, this Court is satisfied that the sentence imposed by the court below is also not liable

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to be interfered with. Matters being so, this Crl.Appeal

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is devoid of merits, and is only to be dismissed, and I

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do so.

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In the result, this Crl. Appeal is dismissed.

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Sd/-

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B. KEMAL PASHA, JUDGE.

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DSV/4/10/16

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// True Copy //

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P.A. To Judge

Binu v. State of Kerala

Case brief

What is this about?

What did the court decide?

Binu v. State of Kerala

Case brief

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What did the court decide?

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