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Judgment
Accused Nos.1 and 2 in S.C.No.213/2007 on the files of the Additional Sessions Court-I, Kollam have filed this appeal under Section 374(2) of the Code of Criminal Procedure, challenging the judgment impugned dated 15.12.2010, delivered in the said case.
In this case, the counsel who filed the appeal for and on behalf of the appellants was not ready to argue the matter and accordingly, this Court as per order dated 29.05.2024 appointed Sri. K.C. Mohamed Rashid as Amicus Curiae/State Brief to argue the matter. After the appointment of the Amicus Curiae on 24.06.2024, counsel for the appellants again appeared and sought time till 25.06.2024 to argue the matter on merits. Later, again this case got adjourned to 15.07.2025 and 18.08.2025. Accordingly, notice was issued to the appellants and it was reported that they had shifted their residence and their whereabouts could not be found. Thereafter, the counsel for the appellants did not turn up to argue the matter. Accordingly, this Court directed the appearance of Adv. K.C. Mohamed Rashid, State Brief to appear and argue the matter on 19.08.2026. Thereafter, on 24.09.2026 again, Sri. K.C Mohamed Rashid was appointed as State Brief to argue the matter on merits.
Heard the learned State Brief and learned Public Prosecutor on 28.10.2026 in detail and perused the judgment under challenge.
Here the prosecution alleges commission of offences punishable under Sections 324, 341, 307 r/w 34 of the Indian Penal Code (hereinafter referred as the ‘IPC’) by accused Nos.1 and 2. The prosecution allegation is that, accused Nos.1 and 2 with an intention to do away with PW1, wrongfully restrained him at 7.30 p.m on 29.01.2006 on the bund of the paddy field towards his house when he was returning to his house at Oliyod colony and assaulted him with intention to do away with him. Even though he sustained injuries, he survived.
The learned Sessions Judge framed charge for the said offences and recorded the evidence. PWs.1 to 14 were examined, Exts.P1 to P14 and MOs.I to VI were marked on the side of prosecution. On the side of defence, DW1 was examined and Exts.D1 to D5 were tendered in evidence. Thereafter, learned Sessions Judge considered the matter on merits after hearing both sides and found that the appellants/accused 1 and 2 had committed offences punishable under Sections 341 and 307 r/w 34 of IPC and they were convicted for the said offences and sentenced as under:
“Accused Nos.1 and 2 are sentenced to undergo simple imprisonment for one month each for offence u/s.341 IPC and two years each for offence u/s.307 r/w.34 IPC. They are also sentenced to pay a fine of Rs.10,000/-(Rupees ten thousand) each for offence u/s.307 IPC and in default simple imprisonment for six months.”
Learned State Brief raised a legal question in the instant case while assailing the verdict. According to him, as deposed by PW12, the Investigating Officer, and as discernible from the evidence of DW1, supported by Exts. D4 and D5, the wound certificates of accused Nos. 1 and 2, the accused persons had sustained injuries, and the prosecution failed to explain how they had sustained the above injuries. The learned counsel has placed reliance on the decision in Parshuram v. State of M.P (2023 KHC OnLine 6973) to contend that when the witnesses are interested witnesses in as much as they are close relatives of the injured, non-explanation of the injuries sustained by the accused persons to be fatal to the prosecution. In paragraph no.20 of the above decision, the Apex Court held as under:
“20.We do not find the said observation of the trial court correct. The injuries sustained by Ramrup @ Roopa is by a sharp weapon. It will be trite to refer to the following observations of this Court in the case of Lakshmi Singh and Ors. v. State of Bihar (1976) 4 SCC 394:
12 It seems to us that in a murder case, the non-explanation of the injuries sustained by the Accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
“(1)that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2)that the witnesses who have denied the presence of the injuries on the person of the Accused are lying on a most material point and therefore their evidence is unreliable;
(3)that in case there is a defence version which explains the injuries on the person of the Accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the Accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the Appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the court to rely on the evidence of PWs 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the Accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima [(1975) 2 SCC 7: 1975 SCC (Cri) 384] there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the Accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.”
It is pointed out by the learned State Brief that the evidence of PW1 supported by the evidence of PW2 and PW3 with the aid of the evidence given by PW5 and Ext.P7 wound certificate as that of PW1, commission of offences under sections 341 and 307 of IPC could not be found since the said evidence is not fully free from doubts. On these grounds, he pressed for interference in the impugned verdict to record acquittal of the appellants giving benefit of doubt to the appellants.
Strongly refuting these contentions, learned Public Prosecutor submitted that, in the instant case, going through the prosecution allegation herein with that of the prosecution allegation in Ext.D2 charge in C.C.No.55/2005 proved through PW12, Investigating Officer, even though the time of occurrence is stated as 7.30 p.m. in both crimes, it is discernible that the crime in C.C.No.55/2005 had occurred after the occurrence of the present crime and therefore, accused Nos.1 and 2 had sustained injuries in the said occurrence and in such view of the matter, it could not be held that the prosecution failed to explain the injuries sustained by the accused persons herein as discernible from the evidence of DW1 and from Exts.D4 and D5. Thus, he pressed for confirmation of the impugned verdict.
Now the question arises for consideration are:
Whether the Sessions Court is right in holding that the appellants/accused Nos.1 and 2 committed offence punishable under Section 341 IPC?
Whether the Sessions Court justified in holding that the appellants/accused Nos.1 and 2 committed the offence under Section 307 r/w 34 of IPC?
Whether the verdict would require interference?
The order to be passed?
Point Nos.(i) to (iv)
While answering these points, it is relevant to refer the evidence given by PW9, the doctor who had examined PW1 and issued Ext.P7 wound certificate. PW9 deposed about the treatment given to PW1, when he was taken to the hospital, soon after the occurrence and according to him, he had noted the following injuries.
“(1)Injury about 10x3x1 c.m at left infra scapular area.
(2)Injury about 7x2x1 c.m on the supra scapular area.
(3)Injury about 3x2x1 c.m, 5 c.m below the nape of neck.
(4)Skin deep injury about 7x5 c.m on the left shoulder.
(5)Scalp injury about 10x3x2 c.m, 5 c.m about the left ear.
(6)Injury of about 10x2x1c.m starting from hair line about 2 c.m lateral to the midline extending to the midline of the head.
The injuries are possible with MO1 weapon. Injuries are on the vital part of the body. There was heavy bleeding from the injury.”
This is a case, wherein, as borne out from Ext.P7 wound certificate and the evidence of PW9, PW1 sustained multiple lengthy injuries on the head, scalp and shoulder and according to PW9, the injuries could be caused by MO1 weapon.
Going through the evidence to prove the occurrence, the prosecution relied on the evidence of PW1, the victim, and PW2 and PW3 who witnessed the occurrence supported by the evidence of PW6, uncle of the victim who reached the place of occurrence soon after the occurrence. PW1 is the victim in the case. He deposed that he is residing at Vadacod and he is residing along with his mother. The incident in the case occurred at 7.30 p.m on 29.1.2006, while he was returning to his house from Vadacod School through the bund of the paddy field on the western side of the school. When he reached in the bund through the property of one Mannarath Joy, somebody shouted that they would kill him. He turned back and flashed the torch and found accused nos.1 and 2 there. The second accused, Soman caught hold of him and pushed him into the paddy field. The first accused cut him with the chopper on the neck, back and on his left ear and also caused cut injury on the middle of his head. He cried aloud. Soon some persons came through the paddy field flashing torch. Then the accused attempted to cut on his neck with the chopper, he prevented the same with his right hand and thereby he had sustained injuries to his fingers. When the neighbours came there, the accused abandoned the chopper and escaped through the rubber estate. He was taken to the hospital. He had given Ext.P1 statement to the police. According to him, his brother Saju had married the sister of the accused. Out of that enmity, the accused attacked him. On 20.8.2004, the accused had attempted to murder him and there was a case before the Kottarakkara Court in the said occurrence. He identified MO1 chopper before the court. MO2 chappal, MO3 specs, MO4 torch, MO5 lunki and MO6 shirt were marked through him. There was one rupee currency note in his pocket and it was marked as Ext.P2. There was a photo identity card which was marked as Ext.P3. PW1 was cross examined at length to shake his version.
During cross-examination, he deposed that Vadacod school is on the western side of Kottarakkara-Pathanapuram road. The paddy field is further to the west of the School. One can enter into the paddy field from the southern side of the school going to the colony. That road is a cartable road having street light. That road leads to the colony where he is residing. On both sides of the bund of the paddy field there was tapioca and plantain cultivation. From Alikkuzhi, one can go to the colony without using the bund. Most of the inmates of the colony are CPI workers and his friends. CWs 2 and 6 are his relatives. The accused inflicted several cut Injuries. He was pushed down into the water channel. At that time, he lost possession of his torch. People came there hearing his cry. Before the neighbours came there, the accused had escaped. He denied the suggestion that he deposed falsehood before court. His brother married the sister of the accused in 1999. The father of the accused met with an unnatural death and police had questioned them with respect to that incident. His brother Baiju is in jail now. He is getting aid from the government as a blind person. He sustained injuries to his face. He denied the suggestion that at 7.30 p.m he along with party workers attacked the house of the accused and caused hurt to the accused.
PW2 deposed before court that at 7.30 p.m on 29.1.2006, he was returning to his house from Alikkuzhi junction, and while he was walking through the bund, they saw a man coming in the opposite direction flashing a torch light. Suddenly, they heard a hue and a cry. He went to the place of the incident and saw that the second accused had caught hold of PW1 and pushed him down. The first accused inflicted cut injuries to PW1 with a chopper. He shouted for help. At that time accused nos.1 and 2 ran away. They took the injured to the hospital. He identified MO1 chopper and other material objects. During cross-examination, he deposed that he is a sympathizer of CPI party. He is a daily labourer. On that day they had worked on the eastern side of the Vadakod school. Alikkuzhi is 4½ K.m west from his house. They came through the panchayat road and then entered into the paddy field. From Alikkuzhi, one can enter into the colony from the bund of the paddy field. They were coming through the bund of the paddy field. At that time they saw the incident. The accused inflicted injuries to PW1 after pushing down into the ground. They did not go near PW1 and the accused. They saw the incident in the light of the torch. They saw PW1 in a pool of blood and took him to the hospital. When it was suggested by the defacto complainant that he deposed falsehood before court, he emphatically denied the same.
Supporting the version of PW1 and PW2, PW3 also given evidence. According to him, at 7 p.m on 29.1.2006, while he was going to his house from Vayanasala mukku, he went through the paddy field and at that time he saw accused Nos.1 and 2 on the bund of the paddy field. The accused asked him whether he saw PW1 on the way. After some time, he came to know that PW1 had sustained injuries. They took PW1 to the hospital. During cross-examination, he deposed that he is also a CPI worker. Later he saw PW1 with injuries. He denied the suggestion that what he deposed before court was falsehood .
PW4, the father of PW3 who reached the place of occurrence, deposed that at 7.30p.m. on 29.01.2006, he heard the hue and cry and he rushed to the place of occurrence. Then he witnessed that the first and second accused entering into the rubber estate from the paddy field and also he saw PW1 with injuries. It was through him Ext.P4 scene mahazar was tendered in evidence.
Ext.P5 is the site plan tendered in evidence through PW5, the then Village Officer. It was PW6, who is the uncle of PW1, given evidence that he had taken PW1 in an autorikshaw to the hospital and also he had handed over MO5 and MO6, lungi and shirt worn by PW1 at the time of occurrence to the police. Ext.P6 is the mahazar prepared for recovery of MO5 and MO6 signed by PW7.
Apart from these, PW8, Blacksmith who manufactured MO1 and handed over the same to the accused also supported the prosecution evidence/case.
It is true that the contention raised by the learned Sessions Judge regarding the non-explanation of the injuries sustained by accused nos.1 and 2 and also the contention raised before the trial court that the evidence of PWs.1 to 4 could not be believed was addressed by the learned Sessions Judge. In this connection, learned Sessions Judge observed as under:
“Even as per the allegation of the defence the incident occurred in the house of the accused when PW1 and his henchmen tried to destroy the house of the accused. So, it cannot be stated that the injury sustained by the accused as per Exts.D4 and D5 were caused in the same transaction. Ext.D2 is the copy of the final report filed in crime No.52/2006 of Kunnikkodu police station where the accused in this case was stated to sustain injuries. As per Ext.D2, the accused in the case are Simon, Sundharan, Johnson and Balan. PW1 was not an accused in that case. Ext.D3 is the copy of the mahazar in that case. It shows that the place of incident is the house of the accused. So, it, is clear that the accused sustained injuries not in the same transaction and for that reason it cannot be stated that the prosecution case witnesses suppressed material facts.”
Thus, in this case, as per Exts.D4 and D5, tendered in evidence through DW1, accused nos.1 and 2 sustained injuries which led to the registration of another crime covered by Ext.D2 (C.C.No.55/2005). It is relevant to note that, in the said case, for want of evidence, the accused persons therein were acquitted and PW1 herein is not at all an accused in C.C.No.55/2005. Even though the time of occurrence in both the crimes is stated as 7.30 p.m, in fact going through the allegations in C.C.No.55/2005, the same is an occurrence, after this occurrence as per the allegation of prosecution though the time therein is wrongly stated as 7.30 p.m. in Ext.D2 also.
When evaluating the factual situation in this way, what could be found is that accused nos.1 and 2 sustained injuries in the second occurrence where PW1, the victim, in this case is not at all an accused though the occurrence is after the present occurrence. When there were two occurrences, one after another, in such situation, the likelihood of sustaining injuries in the second occurrence by accused nos.1 and 2 can be discernible from the evidence tendered, there is no reason to hold that the prosecution failed to examine how injuries sustained to accused nos.1 and 2. Therefore, the view taken by the learned Sessions Judge in this regard is only to be sustained and this contention must fail.
Coming back, in the instant case, going through the evidence given by PW1, the injured witness, who sustained injuries as spoken to by PW9, the doctor who had issued Ext.P7 wound certificate after examining PW1 soon after the occurrence, it could be gathered that the appellants herein attacked PW1 to do away him. Even though the appellants did not succeed in committing culpable homicide, they caused multiple injuries as discernible from the evidence of PW9 and Ext.P7 certificate as extracted hereinabove.
It could be seen further that the evidence of PW1 as to causing of injuries to him by the appellants with intention to do away him because of previous animosity, is proved by the prosecution, supported by medical evidence as well, PW2 who was there at the place of occurrence as a chance witness also deposed about the occurrence. In addition to the evidence of PW2, PW3, PW4, PW5 and PW6 also supported the prosecution case. During cross-examination of these crucial witnesses, nothing extracted to shake their versions in any manner.
It is pertinent to note that supporting the above evidence, PW8, Blacksmith who manufactured MO1 and handed over the same to the accused given evidence in their regard, which would show that the appellants/accused persons have made preparations to commit murder of PW1, even by obtaining a newly manufactured weapon, suited for the same. Thus the intention to do away PW1 is to be gathered from the evidence of PW8. Thus, the evidence available would go to show that the prosecution succeeded in proving that appellants/accused 1 and 2 have committed offences punishable under Sections 341 and 307 r/w 34 of the IPC. Therefore, the contention is liable to be confirmed.
Coming to the sentence, the sentence imposed is very reasonable as the maximum sentence imposed for the offence punishable under Section 307 IPC is only two years. In such view of the matter, the sentence also is liable to be confirmed.
In the result, the appeal fails and is dismissed by confirming the conviction and sentence imposed by the Sessions Court. Consequently, the order suspending sentence and granting bail to the appellants/accused Nos.1 and 2 stands cancelled and their bail bonds also stand cancelled. The appellants/accused Nos.1 and 2 are directed to surrender before the Sessions Court to undergo the sentence, forthwith, failing which, the Sessions Court is directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment to the Sessions Court, for information and compliance.