Satheesan vs Sate Of Kerala

The sole accused in S.C.No.422/2013 on the files of the Additional Sessions Court, Muvattupuzha has preferred this appeal, challenging the conviction and sentence imposed against him in the above case dated 20.11.2014. Respondent herein is the State of Kerala.

Heard the learned counsel for the appellant/accused and the learned Public Prosecutor. Perused the judgment under challenge along with the records of the Sessions Court.

Here, the prosecution alleges commission of offences punishable under Sections 307 and 326 of the Indian Penal Code (for short, 'the IPC' hereinafter) by the accused, and the specific allegation is that at about 7.45 p.m. on 03.01.2013, the accused, with intention to do away with the victim (PW2), caused serious injuries to him. Though PW2 survived, he sustained very serious injuries including skull fracture.

In this matter, the Sessions Court framed charge for the aforesaid offences and proceeded with trial. During trial, PW1 to PW11 were examined, Exts.P1 to P14 as well MO1 to MO4 were marked on the side of the prosecution. No defence evidence was adduced.

After appreciation of evidence, the learned Sessions Judge found that the appellant/accused committed offences punishable under Sections 307 and 326 of the IPC. Accordingly, he was convicted for the said offences and sentenced as under:

Multifaceted contentions have been raised by the learned counsel for the appellant/accused to unsustain the verdict. According to the learned counsel, in this case, no independent witness examined by the prosecution to prove the prosecution allegation. According to him, PW2, the injured, PW1, the wife of PW2, and PW3, a neighbour of PW2 were examined. It is pointed out further that, as regards recovery of MO1, no independent witness was examined to prove the same. Thus, the submission of the learned counsel for the appellant/accused is that prosecution failed to prove the case beyond reasonable doubt and therefore, the appellant/accused is liable to be acquitted, enlarging benefit of doubt.

Whereas, it is submitted by the learned Public Prosecutor that, apart from PW2, the injured and PW1, the wife of PW2, PW3, the independent witness, who is none other than the neighbour of PW2 also was examined to prove the occurrence and the evidence given by PW2 and PW1, in no way, shaken during cross-examination. Apart from that, PW8, the Medical Officer who initially attended PW2, and PW10, the Neurosurgeon who treated PW2, thereafter also deposed in support of the prosecution case by stating that PW2 had sustained grievous injuries, including left temporal scalp wound, left bone depressed fracture, left temporal SDH, left temporal ICH, left frontal contusion, pheumocephalus and SAH to corroborate the prosecution case. The learned Public Prosecutor also submitted that PW4, a witness to recovery of MO1 chopper, also was examined to prove the recovery under Section 27 of the Indian Evidence Act, 1872 (for short, ‘the Evidence Act’ hereinafter).

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

Here is a case where the prosecution examined PW2, the injured, PW1, the wife of PW2, PW3, the independent witness, who is a neighbour of PW2, supported by the other witnesses including PW8 and PW10, the Medical Officers, who treated PW2 to prove the guilt of the appellant/accused. In this case, Ext.P1 FIS was given by PW1, the wife of the injured (PW2) to PW6, the Assistant Sub Inspector of police on 04.01.2013, i.e., on the next day of occurrence and accordingly, Ext.P1(a) FIR was registered. PW9 investigated the same and filed final report.

Having heard both sides, the prime witness for the prosecution case is none other than PW2, the injured. PW2 deposed that the accused was his neighbour. The accused used to utter obscene words against him, after consuming alcohol. He further deposed that, at about 7.45 p.m. on 3.1.2013, while he was returning to his house through the canal road in front of the house of the accused, the accused suddenly appeared before him, holding a chopper in his hand saying that, “I will finish you”. He caught hold of the right hand of the accused, and tried to save himself. Despite that he cried aloud, calling his wife. On hearing his hue and cry, his wife, daughter and neighbour Sivan arrived at the place of occurrence. When the accused noticed them, he inflicted an injury on the left side of PW2's head with the chopper. Soon PW2 sat on the road. Then, the accused inflicted a cut injury on his right wrist with the same chopper. He was taken to Pazhanganad Hospital in a car and was subsequently referred to Kolenchery Hospital. He sustained fracture on the skull and underwent inpatient treatment at the hospital. He identified the accused in the light available from the electric bulbs fitted in his house and the house of the accused. He further deposed that the accused attempted to kill him due to previous enmity, arising from the mistaken belief that he had killed the dog owned by the accused. PW2 identified MO1 as the chopper used by the accused to inflict injuries upon him. He also identified MO2 shirt and MO3 dhothi (mundu) as the dress worn by him at the time of occurrence. He identified MO4 as the dhothi (mundu) worn by the accused at the time of assault.

PW1, the wife of PW2, the victim, deposed that her husband, a carpenter by profession had been working in a workshop in Pazhanganad. He used to go to work by bus. The accused was their neighbour and resided on the opposite side of the Periyar Valley Canal. The accused was not in good terms with them following the death of his dog. He used to utter obscene words against them, alleging that PW2 was responsible for the death of his dog. At about 7.45 p.m. on 3.1.2013, while she and her daughter were sitting in their house, she heard the cry of her husband from the canal bund road in front of the house of the accused. When she came out of the house, she noticed the occurrence on the canal road. She and her daughter went to the place of occurrence, where she saw the accused inflicting an injury on the left side of PW2's head with a chopper. The accused again inflicted an injury on the right wrist of her husband with the chopper. Their neighbour, Sivan, also reached the place of occurrence on hearing the hue and cry. Sivan took her husband to Pazhanganad Hospital in a car. Subsequently, her husband was referred to Medical College Hospital, Kolenchery, where he underwent inpatient treatment for two weeks. Her husband sustained fracture on his skull. According to her, she had witnessed the occurrence in the light available from the electric bulbs fitted in their house and the house of the accused. Ext.P1, the First Information Statement furnished by her to the police by PW1 was tendered in evidence through her.

Sivan, an independent witness and a neighbour of the accused and PW2, the victim was examined as PW3. He deposed that, at about 7.30 p.m. on 3.1.2013, while he was watching a television programme at his house, he heard the cry of PW1 from the nearby canal bund. He went to the place of occurrence with a torch and, on reaching there, saw an altercation between the accused and PW2 on the canal road. He saw the accused inflicting injury on the head of PW2 with a chopper. While PW2 Kumaran when sat on the road, the accused again inflicted an injury on his right wrist with the chopper. PW3 took PW2 to Pazhanganad Hospital in a car. PW2 was later referred to Medical College Hospital, Kolenchery. According to PW3, the accused inflicted injuries on PW2 under the mistaken belief that PW2 had killed the dog owned by the accused. Ext.P2 scene mahazar also was tendered in evidence through PW3 as signatory to the same.

PW4, the son-in-law of PW2, deposed that the police recovered a chopper from the hen coop and a dhothi (mundu) from the house of the accused as per Ext.P3 mahazar. He identified MO1 chopper and MO4 dhothi (mundu) before the court. He further deposed that MO1 and MO4 were produced before the police by the accused. PW4 also produced MO2 shirt and MO3 mundu worn by PW2 at the time of the incident before the police. He identified his signature in Ext.P4 mahazar prepared for the recovery of MO2 and MO3.

PW8, the Casualty Medical Officer of Medical College Hospital, Kolenchery, deposed that, at about 8.35 p.m. on 03.01.2013, he had examined Kumaran (PW2) and issued Ext.P6 wound certificate after noting the injuries found on his body. According to PW8, the following injuries were noted in Ext.P6 wound certificate:

The Neurosurgeon attached to Medical College Hospital, Kolenchery examined as PW10 deposed that he had treated PW2 during the period from 03.01.2013 to 14.01.2013. PW10 identified Ext.P9 as the discharge summary issued by him. PW10 testified that he had noted the injuries in the discharge summary of PW2; viz., left temporal scalp wound, left bone depressed fracture, left temporal SDH, left temporal ICH, left frontal contusion, pneumocephalus and SAH. PW10 further deposed that all the injuries noted in Ext.P9 discharge summary could be caused by a single assault with MO1 chopper.

PW9, the Investigating Officer deposed that, subsequent to the arrest of the accused at 9.30 p.m. on 4.1.2013, he recorded the confession statement of the accused and, on the basis of the disclosure statement given by the accused, while he was in police custody, when he followed the accused, he had produced MO1 chopper and MO4 dhothi (mundu) worn by the accused at the time of the incident, as volunteered by him and the same were recovered by preparing Ext.P3 mahazar.

The evidence of PW4 disclosed that MO1 was recovered by the police from the hen coop belonging to the accused, on the basis of the information furnished by the accused, as per Ext.P3 mahazar. His evidence further disclosed that MO4 dhothi (mundu) was recovered from the house of the accused as per Ext.P3 mahazar. Ext.P3(a) was the relevant portion of the confession statement furnished by the accused to PW9.

Here, the evidence of PWs 4 and 9, corroborated by Ext.P3 mahazar, clearly proved that MOs 1 and 4 were recovered on the basis of the information furnished by the accused while he was in police custody.

Adverting to the contention raised by the learned counsel for the appellant/accused that no independent witness was examined to prove the occurrence, it is relevant to note that PW3, who was examined in this case, is an independent witness who witnessed the occurrence and is a neighbour of PW1 and PW2. It is pertinent to note further that the appellant/accused also is one among the neighbour of PW1 and PW2. The assault was in front of the house of the appellant/accused at 7.45 p.m. on 03.01.2013 while PW2 was returning to his house through the canal road in front of the house of the appellant/accused. Thus, if no others were present at the place of occurrence apart from PW1, PW2 and PW3, the prosecution could not produce any other witnesses other than those who actually witnessed the occurrence.

In the instant case, there is no materials to show that any other persons witnessed the occurrence and the defence also not cited anybody capable of giving independent evidence apart from that of PW1 to PW3. Therefore, this contention is bereft of merits and is repelled. Coming to the contention raised by the learned counsel for the appellant/accused that no independent witness was examined to prove the recovery of MO1 in terms of Section 27 of the Evidence Act, this contention is also found to be without any basis. The rationale is that, PW4, the son-in-law of PW2 deposed that the police recovered MO1 chopper from the hen coop and MO4 dhothi (mundu) from the house of the appellant/accused, which were produced by the appellant/accused. He also admitted his signature in Ext.P3 mahazar prepared in connection with the recovery and identified MO1 and MO4. Thus, on re-appreciation of evidence, none of the contentions raised by the learned counsel for the appellant/accused found to be acceptable where the prosecution evidence categorically established the ingredients for the offences punishable under Sections 307 and 326 of the IPC and in such view of the matter, the conviction imposed by the learned Sessions Judge is liable to be confirmed.

Coming to the sentence, the learned Sessions Judge imposed rigorous imprisonment for a period of five years for the offence punishable under Section 307 of the IPC apart from imposing ₹1,00,000/-(Rupees One Lakh only) as fine. Similarly, for the offence punishable under Section 326 of the IPC, rigorous imprisonment for a period of two years and a fine of ₹10,000/- (Rupees Ten Thousand only) were imposed.

Having noticed the seriousness of the offences committed by the appellant/accused and also the nature of the serious injuries caused, no reduction in sentence also can be considered.

Hence, this appeal fails and is dismissed by confirming the conviction and sentence imposed by the learned Sessions Judge. Consequently, the order suspending sentence and granting bail to the appellant/accused stands cancelled and his bail bond also stands cancelled. The appellant/accused 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.