Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 2447 (KER)

Deepu v. State Of Kerala

2025-09-12

JOHNSON JOHN

body2025
JUDGMENT JOHNSON JOHN, J. This appeal is against the judgment in S.C. No. 144 of 2009 on the file of the Additional Sessions Judge, Adhoc-II, Ernakulam. As per the impugned judgment, the first accused is convicted and sentenced under Section 307 IPC to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/- and the second accused is convicted and sentenced under Section 323 IPC to undergo simple imprisonment for two months. 2. During the pendency of the appeal, the second accused died and since fine does not form part of the sentence against the second accused, the appeal of the second accused is treated as abated. 3. As per the prosecution case, the accused were having enmity towards PW2 for the reason that he had questioned their unauthorised sale of liquor and on 06.08.2005, at about 10 p.m., there occurred an altercation between the second accused and PW2 about the unauthorised sale of liquor by the second accused in front of the residence and shop of PW2 at Kozhyvettumveli and then the second accused beat on the left cheek of PW2 and the first accused stabbed PW2 with a knife on the right abdomen resulting in the protrusion of intestine through the wound. The accused are alleged to have committed the overtacts in furtherance of their common intention to murder PW2 and thereby, committed the offences punishable under Sections 323 and 307 r/w 34 IPC. 4. Before the trial court, when the accused persons pleaded not guilty to the charge, the prosecution examined PWs 1 to 12 and marked Exhibits P1 to P17 and MOs 1 to 5. From the side of the defence, DW1 examined and Exhibit D1 marked. 5. After considering the oral and documentary evidence on record and hearing both sides, the trial court found the first accused guilty under Section 307 IPC and the second accused guilty under Section 323 IPC. 6. Heard Sri. C.P. Udayabhanu, the learned counsel for the first appellant/first accused and Smt. Hasnamol N.S., the learned Public Prosecutor. 7. 5. After considering the oral and documentary evidence on record and hearing both sides, the trial court found the first accused guilty under Section 307 IPC and the second accused guilty under Section 323 IPC. 6. Heard Sri. C.P. Udayabhanu, the learned counsel for the first appellant/first accused and Smt. Hasnamol N.S., the learned Public Prosecutor. 7. The learned counsel for the first appellant/first accused argued that even as per the prosecution case, the initial altercation was between the second accused and PW2 and the evidence of PWs 1 and 2 as against the first accused is not wholly reliable and the prosecution has failed to examine independent witness to prove the occurrence and therefore, the accused is entitled for the benefit of reasonable doubt. 8. The learned Public Prosecutor argued that the evidence of the injured, PW2, is supported by the evidence of PW1, wife of the injured and eye witness to the occurrence, and there is no material contradiction in their evidence regarding the occurrence and that their evidence is also corroborated by the medical evidence and the recovery of MO1, knife, on the basis of the disclosure statement of the first accused and therefore, the appeal is liable to be dismissed. 9. The evidence of PWs 1 and 2 shows that the incident occurred at about 10 p.m. on 06.08.2005 in front of their residence and that there occurred an altercation between PW2 and the second accused about the unauthorized sale of liquor by the second accused and then the second accused beat PW2 on the left cheek and the first accused, who rushed to the scene, stabbed PW2 with MO1 knife on the right side of the abdomen. PWs 1 and 2 identified MO1 as the knife used by the first accused to stab PW2. 10. The evidence of PW3, Casualty Medical Officer of the Medical Centre Hospital, Ernakulam, who examined PW2 at about 10.45 p.m., on 06.08.2005 and Exhibit P2, wound certificate, shows that PW2 sustained incised wound 6 x 2 cm in right lumbar region with intestine and omentum hanging outside. 11. The evidence of PW4, the Surgical Gastroenterologist of Medical Centre Hospital, Ernakulam, also shows that PW2 was admitted to the hospital in a very serious condition following the stab injury and he was subjected to major operation. 11. The evidence of PW4, the Surgical Gastroenterologist of Medical Centre Hospital, Ernakulam, also shows that PW2 was admitted to the hospital in a very serious condition following the stab injury and he was subjected to major operation. PW4 also deposed that the stab injury sustained by PW2 could be caused by MO1 knife. 12. The evidence of PW10, Sub Inspector who arrested the first accused on 21.08.2005, shows that on the basis of Exhibit P9(a) information received from the first accused, he went along with the accused to the house of a relative of the accused in Aluva and from there the accused took out MO4, shirt, and MO5, dothi, worn by him at the time of occurrence. 13. The relevant portion of the disclosure statement of the first accused is marked as Exhibit P9(a). The evidence of PW10 further shows that Exhibit P5(a) disclosure statement of the first accused led to the recovery of MO1, knife. The evidence of PW10 regarding the recovery of MO1, knife, on the basis of the disclosure statement of the first accused is corroborated by PW7, an attestor to Exhibit P5 mahazar. PW7 deposed that the first accused took out MO1 knife from a thicket near Kozhyvettumveli junction at about 1.30 p.m., on 22.08.2005 and at that time, he was accompanied by police. 14. A perusal of Exhibit P13, copy of the forwarding note, and Exhibit P14, report from the Forensic Science Laboratory, Thiruvananthapuram, shows that bloodstains were detected on MOs 1 and 5 i.e., item Nos. 5 and 3. The report further shows that the blood detected on MOs 1 and 5 is human blood belonging to the group ‘O’. It is pertinent to note that as per the the prosecution case, MO5 is the saffron coloured lungi worn by the first accused at the time of occurrence and MO1 is the knife used by the first accused for stabbing PW2. At the time of 313 questioning, the first accused has not given any satisfactory explanation for the presence of human blood belonging to group ‘O” in Mos 1 and 5. 15. At the time of 313 questioning, the first accused has not given any satisfactory explanation for the presence of human blood belonging to group ‘O” in Mos 1 and 5. 15. In Balu Sudam Khalde and another v. State of Maharashtra [2023 Livelaw (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. (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.” 16. On careful re-appreciation of the entire evidence, I find that the evidence of PWs 1 and 2 regarding the occurrence is natural and consistent with the case of the prosecution. Even though PWs 1 and 2 were seriously cross examined, the core spectrum of the case remained intact throughout the cross examination and they have not given room for any doubt as to the material particulars deposed by them in relation to the place of incident, the genesis of the incident and the overtacts attributed against the accused persons. The evidence of PWs 1 and 2 has correlation with each and every other supporting evidence, including the medical and scientific evidence in this case. Therefore, I find no reason to disagree with the the finding of the trial court in this regard. 17. The evidence of PWs 1 and 2 has correlation with each and every other supporting evidence, including the medical and scientific evidence in this case. Therefore, I find no reason to disagree with the the finding of the trial court in this regard. 17. The learned counsel for the first accused/first appellant argued that the ingredients of the offence under Section 307 IPC is not attracted, in as much as there is no evidence to show that the injury inflicted was capable of causing death or that the accused inflicted the injury with the intention to cause the death of PW2. It is argued that the initial altercation was between PW2 and the second accused and even as per the the prosecution case, the first accused reached there only subsequently. 18. But, the learned Public Prosecutor argued that the intention of the accused is to be gathered from the circumstances like the nature of the weapon used, nature of the injury inflicted, parts of the body where the injury was caused and to justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. 19. In State of M.P v. Kashiram [ AIR 2009 SC 1642 ], the Honourable Supreme Court held that for attracting conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted and that the Section makes a distinction between the acts of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. 20. In State of Maharashtra v. Balram Bama Patil [ (1983) 2 SCC 28 , it was held that whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a case. It was also held that the circumstances that the injury inflicted by the accused was simple or minor will not, by itself, rule out application of Section 307 IPC and the determinative question is the intention or knowledge, as the case may be, and not the nature of the injury. 21. In R. Prakash v. State of Karnataka [ (2004) 9 SCC 27 ], the Honourable Supreme Court held as follows: “9. 21. In R. Prakash v. State of Karnataka [ (2004) 9 SCC 27 ], the Honourable Supreme Court held as follows: “9. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section.” 22. In Jage Ram v. State of Haryana [ (2015) 11 SCC 366 ], it is held as follows: "12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc." 23. In State of M.P. v. Kanha [ (2019) 3 SCC 605 ], it is held as follows: "13. In State of M.P. v. Kanha [ (2019) 3 SCC 605 ], it is held as follows: "13. The above judgements of this Court lead us to the conclusion that proof of grievous or life - threatening hurt is not a sine qua non for the offence under S.307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent." 24. In State of Madhya Pradesh v. Saleem [ (2005) 5 SCC 554 ], the Honourable Supreme Court held as follows: “ 12. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. 13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. 13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.” 25. In Bipin Kumar Mondal v. State of W.B. [ (2010) 12 SCC 91 ], it is held as follows: " 23. In Shivji Genu Mohite v. State of Maharashtra [ (1973) 3 SCC 219 : 1973 SCC (Cri) 214 : AIR 1973 SC 55 ] this Court held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eyewitness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eyewitnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eyewitness is rendered untrustworthy.” 26. I have carefully considered the evidence of PWs 1 and 2 regarding the occurrence and the nature of injuries as noted in Exhibit P2 wound certificate and also the nature of MO1, knife, used by the first accused and I find no reason to disagree with the finding of the trial court that the first accused inflicted the stab injury on PW2 with the intention to kill PW2 and with the knowledge that death will be caused and therefore, I find that the trial court rightly convicted the first accused for the offence under Section 307 IPC. Considering the seriousness and gravity of the offence committed by the first accused, I also find no reason to interfere with the sentence and therefore, the conviction and sentence as against the first appellant/first accused is confirmed. 27. In the result, the appeal filed by the first accused/first appellant is dismissed. The bail bond executed by the first accused/first appellant shall stand cancelled and he is directed to surrender before the trial court forthwith to undergo sentence, failing which the trial court is directed to execute the sentence without fail. Registry is directed to forward a copy of this judgment to the jurisdictional court for compliance and further steps.