Research › Search › Judgment

Kerala High Court · body

2024 DIGILAW 624 (KER)

Ayub @ Dani S/o Cheriya Bava v. State of Kerala

2024-06-07

JOHNSON JOHN

body2024
JUDGMENT : JOHNSON JOHN, J. 1. The appellant is the accused in S.C. No. 38 of 2007 on the file of the Additional District and Sessions Judge, Adhoc No. II Manjeri and he is challenging the conviction and sentence imposed on him for the offences under Sections 324 and 308 IPC. 2. The prosecution case is that because of previous enmity, the accused assaulted PW-1 with iron pipe and knife on 25.11.2005, at about 6 p.m. while PW-1 was engaged in the sale of lemon on the side of the road near Tanur Railway Station. The accused beat PW-1 with an iron pipe on his head and thereafter, assaulted him with a knife aiming his neck and when PW-1 flinched, he sustained injuries on his left hand and right side of the abdomen. It is alleged that the accused also beat PW-1 on his right leg and back with the iron pipe and that the accused committed the act with the requisite intention or knowledge to cause culpable homicide, not amounting to murder. 3. On the basis of Exhibit P1, First Information Statement of PW-1, Exhibit P8 FIR was registered by PW-7 on 26.11.2005 and after completing the investigation, PW-9, Assistant Sub Inspector of Tanur Police Station, filed the final report and after committal, when the accused appeared before the trial court, charge was framed for the offences under Sections 324 and 308 of IPC and when the charge was read over and explained, the accused pleaded not guilty. 4. Thereafter, the prosecution examined PWs 1 to 9 and marked Exhibits P1 to P8 and MOs I and II. No evidence was adduced from the side of the accused. 5. After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge, as per the impugned judgment dated 14.03.2008, convicted and sentenced the accused to undergo simple imprisonment for 3 years under Section 308 IPC and simple imprisonment for one year and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of 3 months for the offence under Section 324 IPC. 6. Heard Sri. Joseph Sebastian Purayidam, the learned counsel for the appellant and the learned Senior Public Prosecutor, Sri. Vipin Narayan and perused the records. 7. 1,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of 3 months for the offence under Section 324 IPC. 6. Heard Sri. Joseph Sebastian Purayidam, the learned counsel for the appellant and the learned Senior Public Prosecutor, Sri. Vipin Narayan and perused the records. 7. The learned counsel for the appellant argued that the trial court has not appreciated the evidence in the correct perspective and that there are serious contradictions and omissions in the evidence of PWs 1 and 2 and therefore, the accused is entitled for the benefit of reasonable doubt. 8. But, the learned Public Prosecutor argued that PW-1 is the injured witness and PW-2 is an independent witness and their evidence regarding the occurrence is supported by medical evidence and that the prosecution has established the charge against the accused beyond reasonable doubt. 9. The de facto complainant, when examined as PW-1, deposed that he was conducting sale of lemon in a goods vehicle on the side of the road at about 6 p.m. on 25.11.2005 and then the accused Ayub, who came from behind, beat him with an iron pipe on the back side of his head by saying that he will kill him. According to PW-1, when he turned back, the accused took out a knife and swung the knife aiming his neck and when he flinched, the knife caused to hit on his hand and he sustained injuries. PW-1 stated that if he had not flinched, the assault with the knife aiming his neck would have caused his death. PW-1 stated that the accused also beat on his legs and back with the iron pipe and when he fell down, the accused ran away. 10. According to PW-1, one Sameer took him to Janatha Hospital and from there, he was taken to Medical College Hospital, Kozhikode and on the next day, he was again admitted in Janatha Hospital. PW-1 identified his signature in Exhibit P1, First Information Statement, and also deposed that the accused was having enmity towards him for the reason that the accused was not allowed to marry his sister. According to PW-1, the accused used to disturb his sister while she was studying in the 10th standard and subsequently, he demanded to marry her. PW-1 identified his signature in Exhibit P1, First Information Statement, and also deposed that the accused was having enmity towards him for the reason that the accused was not allowed to marry his sister. According to PW-1, the accused used to disturb his sister while she was studying in the 10th standard and subsequently, he demanded to marry her. But, they turned down the proposal as the accused was involved in many cases and because of that, previously some verbal altercations occurred. PW-1 identified MO1, iron pipe, and MO2, knife, used by the accused to attack him. The OP ticket and scan report of PW-1 from Medical College Hospital are marked as Exhibits P2 and P3. 11. PW-2 deposed that the accused and PW-1 are known to him and he witnessed the occurrence in which PW-1 sustained the injuries. According to PW-2, on the date of occurrence, while he was standing near the Milma booth, on the side of Tanur Railway Station road, PW-1 was conducting sale of lemon there in his goods vehicle and at that time, the accused who came there from the western side, attacked PW-1 from behind by saying that he will kill him and beat him on the back of his head with an iron pipe and when the pipe fell down from the hands of the accused, he took out a knife and swung the same against PW-1 aiming his neck and the knife caused to hit both hands of PW-1. According to PW-2, when he approached the accused, he pointed the knife towards him and hence, he moved back and then the accused took the iron pipe and again beat PW-1 and thereafter, the accused ran away with the knife and iron pipe. PW-2 also identified MO1, iron pipe, and MO2, knife, before the court. 12. PW-3 is the father of PW-1 and he is not a witness to the occurrence. However, he deposed regarding the alleged motive. According to PW-3, the accused used to disturb his daughter and that when the marriage of his daughter was fixed with one Yousuf, due to the intervention of the accused, the said marriage was cancelled and subsequently, he filed a complaint against the accused before the police and later, the matter was settled due to the intervention of the Panchayat President. But, even after that, the accused used to reach their house to disturb them. But, even after that, the accused used to reach their house to disturb them. PW-4 is a witness to Exhibit P4, scene mahazar and PW-5 is a witness to Exhibit P5, seizure mahazar. PW-6 is the doctor who examined PW-1 in Janatha Hospital, Tanur and issued Exhibit P7 wound certificate noting the following injuries: 1. Lacerated wound on the right mastoid 3 x 1 cm. 2. Swelling present over the right mastoid region and neck. 3. Tenderness and contusion present over the right side of chest and right thigh. 13. The evidence of PW-6 shows that the alleged cause was assault and his opinion is that the injuries can be caused as alleged. PW-6 also deposed that the injuries noted in Exhibit P7 could be caused by using MOs 1 and 2. In cross-examination, PW-6 stated that the possibility of causing the injuries noted in Exhibit P7 in a road accident is remote. 14. The learned counsel for the appellant argued that the evidence of PW-1 would show that he was taken to the hospital by one Sameer and the prosecution has not examined the said Sameer as a witness and therefore, there is suppression of material evidence. However, it is pertinent to note that while cross examining PW-9, who conducted the investigation and filed the final report, no question was put regarding Sameer who took the injured to the hospital and there was also no suggestion that the non-examination of the said witness has caused prejudice to the accused. The learned Public Prosecutor pointed out that there is nothing in the evidence of PWs 1 and 2 to show that the said Sammer has witnessed the actual occurrence in this case and in that circumstance, I find that the non-examination of the said Sameer has not caused any prejudice to the accused as there is nothing in evidence to show that he is a material witness. 15. The learned counsel for the appellant argued that there are serious contradictions and omissions in the evidence of PWs 1 and 2 and therefore, their evidence is not reliable. In cross-examination, PW-1 stated that he is conducting sale of lemon in a goods auto rickshaw and that the incident occurred at Tanoor Angadi junction and that people used to gather near his goods auto rickshaw while conducting sale of lemon. In cross-examination, PW-1 stated that he is conducting sale of lemon in a goods auto rickshaw and that the incident occurred at Tanoor Angadi junction and that people used to gather near his goods auto rickshaw while conducting sale of lemon. According to PW-1, before he turned back on hearing the utterance of the accused that he will kill him, the accused beat him and he denied the suggestion that the accused beat him after he turned back on hearing the utterance of the accused. PW-1 would say that the accused beat him simultaneously by uttering that he will kill him and when the iron rod fell down from the hands of the accused, he took out the knife and swung the same aiming his neck. According to PW-1, when the accused swung the knife, he used both hands to cover his head and evaded the attack and then he sustained injuries on both hands. 16. In cross-examination, PW-2 stated that there occurred no verbal altercation between the accused and PW-1 and that he was present at the place of occurrence. According to PW-2, the accused beat on the back of the head of PW-1 by uttering that he will kill him. PW-2 would say that even after PW-1 fell down, the accused beat him. But, the witness cannot say as to how many times the accused beat PW-1. It is well settled that when eye-witnesses are examined at length, it is quite possible for them to make some discrepancies and only when the discrepancies in the evidence of witnesses are so incompatible with the credibility of their version, the court will be justified in disbelieving their evidence. 17. It cannot be disputed that normal discrepancies in evidence are those which are due to normal errors of observations and normal errors of memory due to lapse of time and such discrepancies and errors will always be there, however honest and truthful a witness may be. Ordinarily, a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short span of time. 18. Ordinarily, a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short span of time. 18. In Tahsildar Singh and Another vs. State of U.P. AIR 1959 SC 1012 , the Honourable Supreme Court held that the procedure prescribed for contradicting a witness by his previous statement is that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it, which are to be used for the purpose of contradicting him. In the said decision, it was also held that the contradiction should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police officer and what he actually made before him. 19. The proviso to Section 162 of Cr.P.C. only enables the accused to make use of such statement to contradict a witness in the manner provided by Section 145 of the Indian Evidence Act. In this case, no portion of the previous statement was specifically brought to the attention of PWs 1 and 2 while cross examining them and no portion of their previous statement is proved legally to contradict them. In that circumstance, I find no material contradiction or omission amounting to contradiction in the evidence of PWs 1 and 2 and that their evidence regarding the occurrence is reliable and trustworthy and further, their evidence is also supported by clear medical evidence. 20. It is also well settled that the evidence of the injured witness has greater evidential value and unless compelling reasons exist, their statements are not to be discarded lightly. In Balu Sudam Khalde and Another vs. State of Maharashtra, 2023 Live Law (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. (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, 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.” 21. The learned counsel for the appellant argued that the injuries noted in Exhibit P7, wound certificate, are not grievous injuries and there is no satisfactory evidence to show that the accused committed the act with the required intention or knowledge to attract the offence under Section 308 of IPC. But the learned Public Prosecutor pointed out that the evidence of PWs 1 and 2 would clearly show that the accused committed the act with the required intention and knowledge. An attempt is an intentional preparatory action which fails in its object and therefore, the question is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder. 22. On a careful re appreciation of the evidence of PWs 1 and 2 regarding the occurrence and the nature of injuries in Exhibit P7 wound certificate and the weapons used by the accused, I find that the prosecution has succeeded in proving beyond reasonable doubt that the accused committed the act with the required intention and knowledge and therefore, I find that the trial court rightly convicted the accused for the offences under Sections 324 and 308 IPC and since the trial court has already taken a lenient view in the matter of sentence, there is also no reason to interfere with the sentence imposed by the trial court. 23. 23. In the result, this appeal is dismissed confirming the conviction entered and the sentence passed by the learned Additional Sessions Judge in S.C. No. 38 of 2007. Interlocutory applications, if any pending, shall stand closed.