Dismissed

Abu Haji v. State of Kerala

Kerala HC14 Oct 2016CRL.A/740/2009

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal filed by the appellant convicted under Section 324 IPC and the complaint regarding inadequate sentence. The court upheld the conviction and original sentence, finding the evidence of injury and assault sufficient while rejecting claims regarding other potential co-accused.

What did the court decide?

The criminal appeal and related complaint were dismissed, upholding the conviction and sentence of the additional sessions court.

Abu Haji Vs State of Kerala — Criminal Trial and Appeal | 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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FRIDAY, THE 14TH DAY OF OCTOBER 2016/22ND ASWINA, 1938

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CRL.A.No. 740 of 2009 ( )

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SC 281/2008 of ADDITIONAL SESSIONS COURT (ADHOC-III), MANJERI DATED 31-03-2009

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APPELLANT/ACCUSED:

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ABU HAJI, AGED 52, S/O.AVARAN HAJI, ULLATTU PARAMBIL HOUSE, PADAPARAMBA, KANNAMANGALAM, MALAPPURAM DISTRICT.

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BY ADVS.SRI.T.A.SHAJI

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SMT.M.R.JAYALATHA SMT.S.SHEEJA KUMARY(AYOOR)

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RESPONDENTS/COMPLAINANT:

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STATE OF KERALA, (S.I. OF POLICE, VENGARA), REP. BY THE 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 14-10-2016, ALONG WITH CRL.R.P. 1905/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/15/10/16

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B. KEMAL PASHA, J ================ Crl.Appeal No.740 of 2009 & Crl.R.P.No.1905 of 2009

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====--=========== Dated this the 14^th day of October, 2016

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J U D G M E N T

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The appeal is directed against the conviction and sentence passed by the Additional Sessions Court (Adhoc-III), Manjeri, in Sessions Case No.281 of 2008. The court below found the accused guilty of the offence punishable under Section 324 IPC, convicted him thereunder and sentenced him to pay a fine of `7,500/-, in default, to undergo simple imprisonment for one month. Complaining of the inadequacy of sentence, PW1, injured/defacto complainant has

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Crl.A.740/09 & 1905/09

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preferred Crl.R.P.No.1905 of 2009.

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The accused was originally charge-sheeted

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for the offences punishable under Sections 308 and 506(i) IPC. The prosecution case is that on 22.02.2008, at 11.30 a.m., while PW1 was walking through a disputed pathway adjacent to the property of the accused, PW1 was attacked by the accused. It is alleged that the accused inflicted a blow on the head of PW1 with MO1 crowbar. Since PW1 tilted his head sidewise, the blow fell on the side of his head, which resulted in a bleeding injury. When again the accused attempted to beat PW1 with MO1 crowbar, PW1 caught hold of the crowbar, which resulted in a scuffle, whereby both PW1 and the accused fell in a ditch. PW1 was taken to the hospital and on the way to the hospital, they stepped down at the Vengara Police Station. On seeing the bleeding injury, the Sub Inspector of Police deputed PW5 Head Constable to

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Crl.A.740/09 & 1905/09

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take PW1 to the hospital.

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After his examination at the hospital and treatment, PW1 came back to the Police Station along with PW5 and furnished Exhibit-P1 First Information Statement. PW5 registered Exhibit-P5 First Information Report. Initially the investigation was conducted by PW9, Assistant Sub Inspector of Police, Vengara. Thereafter, the investigation was taken over by PW10 Sub Inspector of Police, Vengara. He verified the investigation conducted by PW9. He completed the investigation and filed the Final Report.

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On the side of the prosecution, PW1 to PW10 were examined, Exhibits-P1 to P10 were marked and MO1 and MO2 series were identified. On the side of the accused, Exhibits-D1 to D13 were marked. The accused was examined under Section 313 Cr.P.C. The accused denied the incriminating circumstances appeared in the evidence against him and contended

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Crl.A.740/09 & 1905/09 4

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that PW1 trespassed into his property with MO1 crowbar and attacked the accused. PW1 had destroyed two plantains also. The accused sustained injuries in the incident, for which a case was there.

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Through Exhibit-P5, PW5 had registered Crime No.53 of 2008 of the Vengara Police Station against the appellant herein as the 1^st accused, his son as the 2^nd accused and the wife of the appellant as the 3^rd accused. After investigation, PW10 has chosen to file the Final Report against the appellant alone as the sole accused.

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It seems that from the very beginning, PW1 had been clamouring with an allegation that he was attacked by the appellant as well as the wife and son of the appellant. All along, he had been maintaining such an allegation. Even though, the learned counsel for the appellant has pointed out that in investigation, it has come out that the wife and son of the appellant

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Crl.A.740/09 & 1905/09 5

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had never participated in the incident and therefore, PW1 cannot be believed, this Court is satisfied that the said argument does not deserve any merit. PW1 had a complaint before the court below also during his evidence that the wife and son of the appellant were not arraigned by the Police and in fact they were also accused in the case.

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The evidence relating to the incident is mainly the evidence of PW1, his son PW6 and PW8,

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who is the younger brother of PW1. Coupled with their evidence, the contents of Exhibit-P1 First Information Statement as well as the medical evidence adduced by PW2 and PW3 are also there. The evidence of PW5 also corroborated the versions of PW1.

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From the evidence of PW1, it has clearly come out that he was attacked by the appellant with MO1 crowbar, whereby he sustained injury No.1 noted in Exhibit-P3 wound certificate. The evidence of PW3

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Crl.A.740/09 & 1905/09 6

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clearly corroborates the versions of PW1 relating to the injuries. PW3 has proved Exhibit-P3. PW5 has also deposed that he could find PW1 with a bleeding injury, whereby he was directed by the Sub Inspector to take PW1 to the hospital. PW5 took PW1 to the hospital, where he was examined by PW3.

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It is true that there are some minor contradictions between the statement allegedly furnished by PW1 under Section 161 Cr.P.C. before the Police and his evidence in the court. All those contradictions are minor contradictions and the same are not material. The evidence of PW6 and the evidence of PW8 clearly corroborate the versions of PW1.

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Even though the learned counsel for the appellant has a case that PW6 and PW8 are interested witnesses, it is evident that they have not made any embellishments in their evidence. They have never

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Crl.A.740/09 & 1905/09 7

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stated that they could see the incident from the very beginning. PW6 and PW8 have given consistent versions that they heard the loud cry of PW1 from the direction of the property of the accused and immediately they rushed to the spot. As and when they reached the spot, they could see the scuffle between PW1 and the accused. PW1 was attempting to take hold of MO1 crowbar. PW6 and PW8 have never stated that they could see the incident in which PW1 sustained the bleeding injury. They have clearly stated that they could see a bleeding injury on the head of PW1, when the scuffle was going on. According to them, as and when they reached the spot, the accused along with his wife and son, ran away from the spot. The same is the version of PW1 also.

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It is true that regarding the bleeding

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injury, sustained on the head of PW1, the only

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Crl.A.740/09 & 1905/09

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evidence available is the evidence of PW1 coupled with his version in Exhibit-P1 and the evidence of PW3 and the contents of Exhibit-P3. Over and above it, PW5 has stated that he could see a bleeding injury on the head of PW1. Similarly, PW6 and PW8 have stated that immediately on reaching the spot, they could see the bleeding injury on the head of PW1 and a scuffle was going on between PW1 and the accused. The scuffle was for taking possession of MO1 crowbar and in that process both PW1 and accused fell in the ditch. The versions of PW1 that he was beaten by the accused with the MO1 crowbar, stands proved.

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At the same time, as rightly pointed out by the court below, there is no sufficient evidence to invite the offences under Sections 308 IPC as well as 506(i) IPC. The court below is perfectly right in finding the accused guilty of the offence punishable under Section 324 IPC. Matters being so, the conviction

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Crl.A.740/09 & 1905/09

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passed by the court below is not liable to be interfered with.

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Regarding sentence, the accused has stated before the court below, when he was heard on the question of sentence, that he had his wife and four children and there were no other persons to maintain his wife and children. The same weighed with the court below in imposing the sentence of fine alone with default sentence. Over and above it, it has to be taken note of that the court below has not made any attempt to invoke the provisions of the Probation of Offenders Act. There were no criminal antecedents on the part of the appellant. The age of the accused has also to be taken note of.

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Considering all the aforesaid circumstances, this Court is of the view that the sentence imposed by the court below is also not liable to be interfered with, that too at this belated stage.

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Crl.A.740/09 & 1905/09

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Therefore, this Crl. Appeal as well as this Crl.R.P. are devoid of merits and are only to be dismissed, and I do so.

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In the result, this Crl. Appeal as well as this

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Crl.R.P. are dismissed.

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Sd/-

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B. KEMAL PASHA, JUDGE.

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DSV/14/10/16

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// True Copy //

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P.A. To Judge

Abu Haji v. State of Kerala

Case brief

What is this about?

What did the court decide?

Abu Haji v. State of Kerala

Case brief

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What did the court decide?

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