Partly allowed

Krishnan @ Navunni v. State of Kerala

Kerala HC17 Jul 2019CRL.A/1251/2010

Case brief

AI extract

What is this about?

In a criminal appeal regarding an attack involving house-breaking and assault, the High Court acquitted the fifth appellant, found the first four guilty, and modified their convictions and sentences based on age and medical grounds.

What did the court decide?

5th appellant acquitted; 1st to 4th appellants convicted under section 34 IPC with reduced sentences and compensation directed for the 1st appellant.

Krishnan @ Navunni Vs State of Kerala — Writ and Judicial Review | Kerala HC (2019)

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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 P.UBAID

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WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941

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CRL.A.No.1251 of 2010

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JUDGMENT IN SC 276/2006 of ADDITIONAL SESSIONS COURT (ADHOC-III), PALAKKAD DATED 24.6.2010

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APPELLANTS/ACCUSED NOS.1 TO 5 :-

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1 KRISHNAN @ NAVUNNI, S/O.RAMAN, NILATHUMARE HOUSE, KAINIKODE, THENKARA, MANNARKKAD.

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2 GOPALAKRISHNAN @ MOHANAN, S/O.KRISHNAN @ NAVUNNI, NILATHUMARE HOUSE, KAINIKODE, THENKARA, MANNARKKAD.

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3 GOPINATHAN @ GOPI, S/O.KRISHNAN @ NAVUNNI, NILATHUMARE HOUSE,

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KAINIKODE, THENKARA, MANNARKKAD.

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4 RAJAMANI, S/O.KRISHNAN @ NAVUNNI NILATHUMARE HOUSE, KAINIKODE, THENKARA, MANNARKKAD.

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5 GOPAKUMAR @ KUNHIMON, S/O.KRISHNAN @ NAVUNNI, NILATHUMARE HOUSE, KAINIKODE, THENKARA, MANNARKKAD.

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BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ

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RESPONDENT/COMPLAINANT :-

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

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BY SRI.SANTHOSH PETER, SR.PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1251 of 2010

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JUDGMENT

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The appellants herein are the five accused in S.C.

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No. 276/2006 of the Court of Session, Palakkad. They are

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father and sons. The first accused is the father, and the others are the grown up sons. They faced trial before the learned Additional Sessions Judge (Adhoc-III), Palakkad, under Sections 143, 147, 148, 452, 427, 307, 324 and 326 read with Section 149 of the Indian Penal Code on the allegation that at about 5.00 p.m. on 23.05.2005, they all, in prosecution of a criminal design hatched by them to attack one Ponnu, who is their business enemy, committed house breaking to the house of Ponnu by breaking open the door when Ponnu took refuge inside on seeing the accused coming with weapons, the first accused, with the help of the others, dragged the said Ponnu from the room, and at the veranda of the house, all the five accused jointly assaulted and attacked Ponnu, and inflicted serious injuries on his body with weapons like iron rods, wooden sticks etc., and when his wife intervened to save

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him, they all assaulted her also, and inflicted injuries on her body. It is further alleged that in the same transaction, the accused also committed mischief there by damaging the windows and furniture.

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The police registered the FIR on the date of incident itself on the basis of the first information statement given by the daughter-in-law of the victim. Though there was allegation in the first information

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statement against 6 persons, the police found on investigation that the 6^th one mentioned in the FIR had no involvement in the alleged incident. Accordingly, final report was filed against five accused.

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All the accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them. The prosecution examined 13 witnesses, and proved Exts.P1 to P12 documents in the trial court. The MO1 to

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MO6 properties, including the weapons of offence, were also identified by the material witnesses during trial.

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When examined under Section 313 Cr.P.C., the

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accused denied the incriminating circumstances, and

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projected a defence that this is a false case foisted against them due to some previous enmity, or to escape from the other case registered by the police against the son of the victim and others on the complaint made by the second accused. The accused did not adduce any oral evidence in defence, but Exts.D1 to D6 were proved on their side.

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On an appreciation of the evidence, the trial

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court found that there is no definite material to prove the offence under Section 307 IPC, but the prosecution has proved infliction of grievous and simple injuries on the body of Ponnu. Accordingly, the trial court found the five accused guilty under Sections 143, 148, 452, 427, 324 and 326 IPC, and they all were convicted with the aid of Section 149 IPC. On conviction, they were sentenced to undergo rigorous imprisonment for three years each, and to

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pay a fine of Rs.10,000/- each under Section 326 IPC, to undergo simple imprisonment for one year each under Section 324 IPC, to undergo rigorous imprisonment for two

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years each under Section 452 IPC, to undergo rigorous

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imprisonment for three months each under Section 427 IPC, to undergo rigorous imprisonment for one year each under Sections 148 IPC, and to undergo rigorous imprisonment for one month each under Section 143 IPC. All the substantive sentences were ordered to run concurrently. As regards the offences under Sections 147 and 307 IPC, the trial court acquitted them. Aggrieved by the judgment of conviction dated 24.06.2010, the father and sons have come up in appeal.

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On hearing both sides, and on a perusal of the materials, I find no reason for interference in appeal in the findings or the conviction made by the court below as against the accused Nos. 1 to 4.

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prosecution, the material witnesses are PW1 to PW4 supported by the medical evidence of PW5. The other evidence, which is formal in nature, need not be discussed because there is practically no dispute on these aspects including the investigation process. PW13 is the Sub Inspector who initially investigated the case, and later,

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investigation was conducted by PW11 and PW12. PW10 is the

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Head Constable who registered the FIR. PW9 is only the

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Panchayat Secretary examined to prove the Ext.P6 ownership certificate relating to the house of PW2 where the incident occurred. There is nothing to show that there was

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any flaw, or irregularity, or illegality in the investigation conducted by PW11 and PW12. Of course, it is true that the Circle Inspector, who actually recovered the weapons of offence was not examined. The recovery of weapons was made at the instance of the second accused. PW7 and PW8 examined to prove the recovery, turned hostile. PW6 is only an attestor to the Ext.P4 scene mahazar. Though the recovery witnesses turned hostile, the weapons were clearly and correctly identified by the

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material witnesses during trial.

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PW1 to PW3 are the inmates of the house where the incident occurred. Of them, PW2 is the house owner who sustained severe injuries in the alleged incident. PW3 is his wife, and PW1 is his daughter-in-law. Ext.P1 First Information Statement was given by PW1, without any delay.

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In the Ext.P1 FI statement she has briefly narrated the incident. Though there was allegation against six persons, the police found on investigation that the 6^th one had no involvement in the alleged incident. The evidence given by PW1 is substantially consistent with her statements in the Ext.P1 FI Statement. Of course, it is true that PW3, the wife of PW2 has not given the meticulous details of the incident.

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The prosecution allegation is that the five accused jointly trespassed into the house of PW2 as part of a criminal design to attack him in connection with another dispute, and they all jointly attacked and inflicted injuries on his body. Of course, in the court charge framed at the trial court, there is allegation

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against all the five accused as regards unlawful assembly. But there is conspicuous absence of definite charge against the 5^th accused as regards the overt acts alleged

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under Sections 427, 324, 326 and 452 IPC. There is

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conspicuous absence of such allegations as against him in the final report also. In the court charge on factual

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aspects as regards the distinct offences alleged, things are absent as against the 5^th accused. There is nothing definite in the evidence of PW3 as against the 5^th accused. Of course, it is true that PW1 and PW2 have given evidence against all the accused, but their evidence is mainly and practically against the accused Nos.1 to 4. I find that the evidence given by the material witnesses, and also the prosecution allegation as against the 5^th accused in the final report and in the court charge, are really suspicious. So, I feel it appropriate and just to give the benefit of doubt to him. But as against the accused Nos. 1 to 4, the evidence is quite convincing and satisfactory.

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When the involvement of the 5^th accused is not satisfactorily proved, and when it is not definite by evidence that five persons had involvement in the incident, there cannot be a finding or conviction under Sections 143 and 148 IPC, and as regards the major offences, the accused Nos. 1 to 4 cannot be convicted with

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the aid of Section 149 IPC. But, on an appreciation of the

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evidence given by PW1 to PW3, I find that the accused Nos. 1 to 4 had the definite common intention to attack PW2 in connection with a then pending dispute concerning the timing schedule of the bus services operated by them.

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PW1 to PW3 are definite and consistent that at

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about 5.00 p.m. on 23.05.2005 the accused Nos. 1 to 4

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trespassed into the house of PW2 while he was sitting at the veranda, and when he went inside and locked the room

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on seeing the accused coming with weapons, the four accused rushed into the house, broke open the door, and just then, the first accused, with force, dragged PW2 to the veranda where all the four accused assaulted him and

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inflicted injuries on his body. When PW3 intervened to save her husband, she was also severely assaulted by them. There is definite evidence that for the others to assault

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and attack PW2, he was dragged from the room to the

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veranda by the first accused as the leader of the gang. This is more than sufficient to prove the common intention

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of all to attack PW2. Of course, PW3 sustained injuries

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when she intervened and tried to save her husband. It was

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not with any previous intention or object the accused

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assaulted her or inflicted injuries on her body. PW4 is a neighbour, and he is also the first cousin of PW2. He has not stated the details of the incident alleged. His evidence is that on hearing some noise, he came to the house of PW2, and then he saw PW2 and PW3 with bleeding injuries. Without delay, they were taken to the hospital by him and others. He has also stated that when he reached the house of PW2, he saw some persons including the second accused Gopalakrishnan running away. When cross examined on the identity aspect, he stated that he had not seen the others face to face. I do not think that PW4 is an interested witness. Though he is the first cousin of PW2, he did not state anything artificial against any of the accused. Had he been interested, he would have given artificial versions as against the accused to implicate them all. I find that PW4 is a true and honest witness, and I find no reason to disbelieve him, or to reject the evidence that he had seen the second accused and some others running away from the house of PW2.

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PW5 has given evidence on the basis of the

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Exts.P2 and P3 discharge certificates. The medical evidence given by him, read along with Exts.P2 and P3 certificates, will show that PW3 had sustained only a bone deep lacerated wound 6x1 cms over her parietal region, but PW2 had sustained very serious injuries including fractures. All the injuries are seen clearly described in

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the Ext.P2 discharge certificate. The defence has no explanation as to how exactly PW2 sustained severe injuries. It is quite unbelievable and unacceptable that in a single fall, or in a single contact with any hard object, he sustained all these multiple injuries including fractures on different parts of the body. The medical evidence proves that PW2 had sustained three lacerated wounds (bone deep) on the forehead, 7x1 cms, 6x1 cms and 3x1 cms respectively, a contusion with haematoma on the right shoulder, another contusion of 0.5x2.5 cms over the right thigh, a third contusion 5x2.5 cms over the right thigh, a 4^th one with abrasion 6x6 over the right knee, another lacerated wound with surrounding abrasion over the

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right forearm, another contusion on the right side of the chest 3x4 cms, a fifth laceration over the right index finger, and a 6^th one 1x1 cms over the right ring finger. X-ray investigation revealed fracture of the lateral condyle of right tybia, fracture of right radial styloid, and fracture of the 5^th meta carpal right side, and CT investigation revealed brain oedema. Of course, there is nothing in the medical evidence to show that any of the injuries is sufficient to cause death in the ordinary circumstances, or that any of the injuries would lead to death. However, medical evidence shows that PW2 had sustained three fractures. The accused were rightly found guilty by the trial court under Section 326 IPC as a lesser offence, though there is no evidence to prove the offence under Section 307 IPC.

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Again, let me come to the factual aspects on which PW1 to PW3 have given evidence. All are consistent that the accused Nos. 1 to 4 had trespassed into the house of PW2, and they gained entry into the house to assault PW2 by breaking open the door. All are consistent that

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everybody was armed with weapons like iron rod, wooden stick etc.. This means that they trespassed into the house with preparation to cause hurt. This is punishable under Section 452 IPC. PW3 sustained simple injuries, but PW2 sustained simple as well as grievous injuries. Evidence well satisfies the court that all these injuries were jointly inflicted by the accused Nos. 1 to 4. The severe injury sustained by PW2 on the head was inflicted by the second accused, and the other injuries were jointly inflicted on the various parts of his body by the accused jointly. All the witnesses clearly identified the weapons of offence also. Some of the weapons were recovered by the police at the instance of the second accused as per the Ext.P5 recovery mahazar, and one of the weapons was seized as per the scene mahazar. It was specifically identified as MO2 by all the witnesses. It is the broken handle of a spade which was used by the third accused to assault PW2. The iron rods used by the accused were also specifically and clearly identified by the material witnesses. I find that the prosecution case as against the accused Nos. 1 to

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4 stands very well proved. I find no reason to disbelieve PW1 to PW3, or to reject their evidence. Medical evidence proves very well that PW2 had sustained simple as well as grievous injuries in the alleged incident. As regards the role and complicity of the accused Nos. 1 to 4, all the material witnesses are well consistent and definite. Of course, there are some discrepancies here and there as regards the weapon used by each of the accused, or the distinct injuries inflicted by each of the accused. Such meticulous details are not possible in a case like this. All the witnesses have given evidence proving the culpable complicity and involvement of the accused Nos. 1 to 4 in committing house trespass and mischief at the house of PW2, being armed with weapons, and also in inflicting simple and grievous injuries on the body of PW2 and PW3. As already found, there cannot be a conviction under Sections 143 and 148 IPC when unlawful assembly or rioting stands not properly proved, but I find that the injuries were inflicted on the body of PW2 and PW3 by the four accused with their definite common intention. They all

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came there and gained entry into the house by breaking open the door of the house as part of the said intention to assault and attack PW2, and they all came there with much preparation to cause hurt on his body, being armed with so many weapons like iron rods, wooden stick etc. Of course, it is true that there was another case against the son of PW2 and others. That case relates to yet another incident, and is not at all a counter case. Anyway, I find that the prosecution allegations are well proved by PW1 to PW3, though the case as against the 5^th accused is not proved beyond reasonable doubts.

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Now, the question of sentence. The incident

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happened in May, 2005. This appeal has been pending for nine years. The age of the 1^st accused shown in the final report is 76, and it is submitted that he is aged 86 years now. The learned counsel has produced some medical documents to show that the 1^st accused has been suffering from serious ailments like diabetes mellitus, systemic hypertension, coronary artery disease, and he is now in a condition of senile dementia. He has also produced a

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medical certificate issued from the Taluk Hospital, Mannarkkad. The 1^st accused being a person aged 86 years now with serious ailments of old age including senile dementia, it would be inappropriate and unjust to send him to jail at this age. I feel that a nominal sentence till rising of the court, and a direction to pay adequate amount of compensation will do justice in the case of 1^st accused. As regards the others also, I find that some slight modification can be made in sentence on a consideration of the various aspects, including the age and circumstances of the accused Nos.2 to 4. Everybody must be around or above 50 years now. They have no bad

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antecedents, and there is no other previous conviction to their credit.

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In the result, this appeal is allowed in part.

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The 5^th appellant (5^th accused) is found not guilty of any of the offences under Sections 143, 148, 452, 427, 324 and

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326 IPC, and he is acquitted of those offences in appeal under Section 386(b)(i) Cr.P.C. The conviction and sentence against him under those Sections will stand set

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aside, he will stand released from prosecution, and the

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bail bond, if any, executed by him will stand discharged.

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The appellants 1 to 4 (accused Nos.1 to 4) are

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found not guilty of the offences under Sections 143 and 148 IPC, and they are acquitted of those offences in appeal under Section 386(b)(i) Cr.P.C. The conviction and sentence against them under those Sections will stand set aside. But, the conviction against the accused Nos.1 to 4 (appellants 1 to 4) under Sections 452, 427, 324 and 326 IPC is confirmed in appeal with a modification that the conviction shall be with the aid of Section 34 IPC. Thus, the accused Nos.1 to 4 are convicted with the aid of Section 34 IPC under Sections 452, 427, 324 and 326 IPC. However, the sentence will stand modified as follows :-

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(a) The jail sentence against the 1^st accused (1^st appellant) under Sections 452, 427, 324 and 326 IPC will stand modified and reduced to imprisonment till the rising of the court. (b) The fine sentence as against the 1^st accused under Section 326 IPC will stand set aside, and instead, he is directed under Section

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357(4) Cr.P.C. to pay a compensation of Rs.50,000/- (Rupees Fifty thousand only) to PW2, and a compensation of Rs.10,000/(Rupees Ten thousand only) to PW3, with a default sentence of rigorous imprisonment for six months.

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(c) The substantive sentence as against the accused Nos.2 to 4 (appellants 2 to 4) under Section 326 IPC will stand reduced to rigorous imprisonment for one year each, the sentence against them under Section 324 and 452 IPC will stand reduced to rigorous imprisonment for three months each, and the sentence against them under Section 427 IPC will stand reduced to simple imprisonment for two months each. The substantive sentences as against the accused Nos.2 to 4 under Sections 326, 324, 452 and 427 IPC will run concurrently. They will also get the benefit of set off as already ordered by the trial court.

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The accused Nos.1 to 4 will surrender before the

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trial within four weeks from this date to serve out the

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modified sentence and to make payment of the amount of compensation voluntarily, on failure of which, steps

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shall be taken by the trial court to enforce the modified sentence as against the accused Nos.1 to 4 and realise the amount of compensation from the 1^st accused, or enforce the default sentence.

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The amount, if any deposited by the 5^th accused in

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the court below as a condition for suspension of sentence shall be refunded to him.

Sd/P.UBAID JUDGE

//TRUE COPY//

P.A. TO JUDGE

DS/Jvt/22.7.2019

Krishnan @ Navunni v. State of Kerala

Case brief

What is this about?

What did the court decide?

Krishnan @ Navunni v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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