Mohanan vs State Of Kerala

A. Badharudeen, J.

The judgment in S.C.No.1261/2006 on the files of the Additional District & Sessions Court (Adhoc)-I, Kollam dated 28.02.2011 is under challenge in this appeal filed by the sole accused therein.

Heard the learned counsel for the appellant and the learned Public Prosecutor appearing for the prosecution. Scrutinized the verdict impugned and the records available.

The prosecution allegation is that, at about 3 p.m. on 02.08.2005, with intention to do away with PW2, the accused beat her repeatedly with a dangerous wooden stick and thereby PW2 sustained injuries, though she survived. On this premise, crime was registered alleging commission of offences punishable under Sections 324 and 308 of the Indian Penal Code (hereinafter referred to as ‘IPC’) by the accused. Thereafter, final report in the above line was also filed.

Learned Sessions Judge on completing the pre-trial formalities, started trial. During trial, PWs.1 to 8 and Exts.P1 to P6 were marked on the side of prosecution. No defence evidence was adduced.

On hearing both sides and on scrutinizing of evidence, the learned Sessions Judge found that the accused had committed offences punishable under Sections 308 and 324 of IPC and convicted the accused for the said offences and sentenced him as under:

The learned counsel appearing for the appellant/accused argued that, in the instant case, learned Sessions Judge went wrong in finding that the appellant/accused had committed offences punishable under Sections 324 and 308 of IPC, since the evidence adduced by the prosecution would not justify the said finding. According to him, even though the injured, PW2, deposed in support of the prosecution stating that the accused beat her three times, two of them fell on her head, only one injury was noted by PW1, the doctor who had examined PW2 after the occurrence. According to him, the doctor given evidence that the injury is simple in nature. It is pointed out that two blows fell on the head of PW2 as deposed by her, the same would have caused atleast two injuries. It is submitted further that, as regards the third blow, PW2 had inconsistent versions and therefore, PW2’s evidence could not be given credence to act upon the same. It is pointed out further that, the wooden stick alleged to be used by the accused to beat PW2 was not seized as part of investigation and the same also shadows the credibility of the prosecution case. He also pointed out that, if at all reliance is given to the evidence adduced by the prosecution, the only offence to be found is one under Section 324 of IPC, since the prosecution evidence in no way would justify the knowledge of the accused to do away with PW2. Thus, learned counsel sought interference in the verdict impugned.

Dispelling these contentions, learned Public Prosecutor would submit that on scrutiny of the evidence of PW2, the contention raised by the learned counsel for the appellant that PW2 sustained only one injury, even though she suffered two blows, would not sustain since PW2 categorically deposed that both blows were fell on the same place and the same caused the single injury noted by the doctor.

It is pointed out that, beating PW2 twice on her head, a vital part of the body, takes in the knowledge of the accused to do away with PW2 and therefore, the commission of offence punishable under Section 308 IPC found by the Sessions Court is only to be justified. It is submitted by the learned Public Prosecutor further that, mere non-recovery of the weapon used to commit the offence would not take away the evidence of the injured witness supported by medical evidence to disbelieve the prosecution case and record acquittal. Therefore, he pressed for confirmation of the verdict impugned.

Adverting to the rival contentions, the points arise for consideration are:

The crucial witness in the instant case is PW2, ‘Lydhiyamma @ Mariyamma Abraham’, who suffered injury in this occurrence. She deposed that her name, as recorded in the documents is Mariamma Abraham, and that she also known by the name ‘Ludhiyamma’. Thus, she told the doctor, when she was taken to the hospital that her name as ‘Ludhiyamma’. According to her, the occurrence was on 02.08.2005 and the accused herein is Panakkal Veedu Mohanan and he is her neighbour. She identified him by pointing him at the dock. She deposed that the occurrence was on the courtyard of the house of the accused. She testified that the husband of her father’s sister’s daughter run a shop owned by the accused and the period of rent was upto 14.08.2005. Before that, the accused beat her husband’s uncle demanding vacation of the rented shop. Knowing this, her son, Subinraj, intervened and at this juncture, the accused beat Subinraj also. During this time, she was at her hotel by name ‘Jayaraj Hotel’ at Chengamanad and she reached in front of the house of the accused to question the same. When she reached the house, the accused approached her by uttering that he would give what could be necessary for her and beat on the back of her head with a wooden stick. He again beat on the head and thereby injury was caused on her head. He beat her three times and she evaded the third one. Otherwise, death could have happened. She deposed about her hospitalization at Taluk Hospital, Kottarakkara and treatment thereof. She deposed that she had given Ext.P2 FIS in this regard. Regarding the stick used by the accused to beat her, she stated that the accused ran away with the stick. She was cross-examined to shake her version. During her cross-examination, she clarified her versions in the chief examination without any ambiguity. Further, she deposed that she did not produce her saree or blouse to the police. During cross-examination, she stated that the stick used to beat her is a stick having a length of one hand and she clarified that the first and the second beats fell on the same place. During further cross-examination, she deposed that when the accused beat her for the third time, she restrained the same by her hand.

The learned counsel for the appellant pointed out this anomaly to disbelieve the version of PW2. It is true that PW2 stated during chief examination that she evaded the third blow and during cross-examination, she deposed that it was restrained. In fact, the same would not qualify a material contradiction to disbelieve the version of PW2, in the matter of occurrence, when her evidence failed to be shaken in material particulars.

Supporting the version of PW2, PW3, Yohannan, who run the shop owned by the accused, also gave evidence stating that the accused reached his shop and disturbed him and because of the threat offered by the accused, he was forced to close the shop. According to him, he was aged 81 (on the date of his examination) and he did not remember all acts in detail and accordingly, he was declared hostile regarding the remaining overt acts.

Subinraj, son of PW2, examined as PW4 also deposed about the occurrence and assault against him by the accused as spoken by PW2. He also deposed that he had witnessed the accused beating his mother (PW2) for the second time.

PW5 examined in this case is the sister-in-law of PW2. She deposed that at 3 p.m on 02.08.2005, she went to bring back her child from the school, then she saw PW2 with injuries and took her to the hospital. She saw the accused beating PW2 with a wooden stick. In cross-examination, she deposed that, at that time, her daughter was studying in 1st standard. The saree and blouse of PW2 were blood-stained. The police questioned her and then stated to the police that she saw the accused beating PW2 with a wooden stick.

In order to support and corroborate the evidence of PW2, PW3, PW4 and PW5 regarding the occurrence, the prosecution examined PW1, Dr.Thomas Idikula, who had examined PW2 soon after the occurrence. According to PW1, at 3.35 p.m. on 02.08.2005, while he was working as Assistant Surgeon, Taluk Hospital, Kottarakkara, he had examined PW2 and issued Ext.P1 certificate which would bear his signature. His version is that, on his examination, he had noted a lacerated injury 10 x 0.5 x 0.5 cm over the left parietal region and also according to him, the “alleged cause is beat on her head by a person nearby her house”. He testified further that the injury could be caused as alleged and the injury is simple in nature. No serious cross-examination effected as regards the medical evidence.

Now the question arises for consideration is whether the evidence available would substantiate the ingredients for the offences punishable under Sections 308 and 324 of IPC. In this regard, Section 308 IPC is extracted hereunder:

Before an accused held to be guilty under section 308 of IPC, it is necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt, whatsoever, that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. In the absence of proof of the said essentials, the offence would fall either under sections 323, 324 or 325 IPC based on the evidence brought in. When, the accused can be attributed only knowledge that by inflicting such injuries he was likely to cause death and an attempt to commit such an offence would be one punishable under section 308 IPC. Offence punishable under section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder.

Similarly, the ingredients for the offence punishable under Section 324 of IPC are extracted as under:

Here the main contention raised by the learned counsel for the appellant/accused is that the evidence adduced by the prosecution is quite insufficient to find the ingredients for the offences punishable under Sections 324 and 308 of IPC. Apart from that, the contention otherwise is that the nature of injuries caused would not show either any intention or knowledge and under such circumstances, had it caused the death. Thus, the offence to be found is one under Section 324 of IPC alone.

While addressing the question whether the ingredients for the offence punishable under Section 308 IPC to be found from the evidence adduced, it is well settled law that an accused can be attributed to the knowledge that by inflicting injury or injuries, he was likely to cause culpable homicide not amounting to murder. It is equally well settled that the nature of injury/injuries by itself not decisive, when considering the intention or knowledge contemplated under Section 308 of IPC.

Here is a case, where, when PW2 reached on the spot to question about the assault on her son, Subinraj, the accused rushed towards PW2, uttering that he would give what would be necessary for her. In turn, the accused beat on the back of her head with a wooden stick thrice. But, two of them fell on the same place which resulted in the injury noted by the doctor. Though the third one was evaded. Thus, in the instant case, beating a lady on her vital part repeatedly for three times by a wooden stick would take in the required knowledge of the accused that such blow on the head, the vital part of the body, by using a wooden stick, would result in her death.

It is argued by the learned counsel for the appellant/accused that the weapon alleged to be used to beat PW2 by the accused was not recovered. Here the evidence of PW2 and other witnesses would show that the accused left the place carrying the wooden stick and the same could not be seized. But the doctor opined that the injury could be caused in the manner as alleged, by using a wooden stick. Therefore, the mere non-recovery of the weapon used in the commission of the offence, by itself, is insufficient to eschew the entire prosecution case, ignoring the candid evidence given by the injured person whose testimony is substantiated by the evidence of PW2 to PW5 and corroborated by the medical evidence and the injury sustained by her. Therefore, this contention must fail.

Thus, on re-appreciation of evidence, this Court is of the considered view that the prosecution has succeeded in proving that the appellant/accused had committed the offences punishable under Sections 324 and 308 of IPC and hence the conviction does not require any interference.

Coming to the sentence, the sentence is found to be very reasonable in the facts and circumstances of the case and therefore, the same also is not liable to be interfered with. Thus, the sentence is also confirmed.

In the result, this 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 accused/appellant stands cancelled and his bail bond also stands cancelled. The accused/appellant is 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.