SONY v. STATE OF KERALA

Magistrate of the First Class-II, Kochi the offences mentioned were under Sections 452, 324 and 308 of the IPC. The accusation was that at about 6.30 p.m. on 26.11.2002 while PW2 was talking to PW3-Sunny in front of his shop the Cr.Appeal No.959 of 2007 3 appellant approached them and by telling to PW2, “why did you cause the woman to abuse him” attacked him using a knife. He slashed the knife at the head of PW2 causing him a serious injury. Sessions Court, on getting the matter committed, made over it to the Additional Sessions Judge (Adhoc-I), Ernakulam for trial and disposal. The learned Additional Sessions Judge framed a charge for the offence under Section 308 of the IPC alone. On the appellant denying the charge, the prosecution examined PWs.1 to 12 and proved Exts.P1 to P7. The appellant was thereafter examined under Section 313(1)(b) of the Code. He denied the incriminating circumstances. He did not adduce any evidence, except Ext.D1, which is a contradiction brought out in the evidence of PW5. After hearing both sides, the court below found the appellant guilty, convicted and sentenced him.

Heard the learned counsel for the appellant and the learned Public Prosecutor.

The appellant assails the findings of the court below on many grounds. The essential contentions are that Cr.Appeal No.959 of 2007 4 the oral testimonies of PWs.2 to 5 cannot be believed. The medical evidence in order to prove that PW2 sustained a serious injury is not produced. The evidence of PW1-doctor and Ext.P1 are not enough to establish that PW2 sustained any serious injury. The further contention is that the investigation by PW10 resulted in serious prejudice to the appellant. Highlighting the aforesaid aspects, the learned counsel for the appellant would submit that the conviction entered into by the court below is wrong and liable to be set aside.

The learned Public Prosecutor has taken me through the evidence of material witnesses. The learned Public Prosecutor would submit that the evidence of PW2, the injured is convincing and when evidence of PWs.3 and 5 lent sufficient support to his evidence, there is absolutely no reason to disbelieve the case of prosecution. It is also pointed out that the medical evidence amply corroborated the direct evidence.

PW2 is the injured. He deposed about the incident in detail. The reason for the attack, according to him, is that Cr.Appeal No.959 of 2007 5 he blamed the appellant before the wife of PW3 for his failing to return soda bottles which he had bought from the shop of PW2. While PW2 was chatting with PW3 in front of his shop, the accused came there and indulged into an altercation. Immediately he attacked PW2 at his head using a knife. That attack resulted in a serious injury on his scalp. PWs. 4 and 5, and other neighboring shop owners gathered. They came to the shop on hearing the altercation. PW2 was taken to the hospital by his brother.

While PWs.3 and 5 deposed that they saw the appellant attacking PW2, the version of PW4 is that at the time when he reached the spot, PW2 was holding the bleeding injury on his head and the accused had already left. PW4 did not see the attack, but he, who reached the place soon after the incident, heard the others saying that it was the appellant who attacked and inflicted injury to PW2.

PWs.2 to 5 were cross-examined in detail by the learned counsel for the appellant. Although a few trivial inconsistencies are brought out, their credibility could not be Cr.Appeal No.959 of 2007 6 impeached. Being the owners of the neighboring shops, their presence at the place of occurrence is quite natural. When PWs.3 and 5 consistently and cogently deposed before court that they saw the appellant assaulting and inflicting injury to PW2, there is absolutely no reason for disbelieving them. Ext.D1 is a contradiction concerning the business activity of PW5 and does not relate the incident in question. The said contradiction does not have the effect of discrediting her veracity. In the absence of anything to discredit their veracity, PWs.3, 4 and 5 can be believed. Their evidence can be acted upon. In the said circumstances, there is no reason to interfere with the view taken by the court below that PW2 as well as PWs.3 to 5 are reliable witnesses.

While PW2 was standing along with PW3 in front of his shop, the appellant reached there, picked up a quarrel and attacked PW2 using a knife. The injury inflicted was on the left side of his scalp. PW1, the Assistant Surgeon in the Community Health Centre, Kumbalangi examined PW2 at 6.45 p.m. on 26.11.2002. The incident had taken place at about Cr.Appeal No.959 of 2007 7

06.30 p.m. on that day. Immediately after the incident, PW2 was taken by his brother and others to the said hospital where he was attended to by PW1. The alleged reason stated to PW1 was that he was assaulted by Sony, the appellant using a knife. PW1 proved Ext.P1 wound certificate and deposed regarding the injuries noted by him on the body of PW2. He had referred PW2 to a higher centre considering the seriousness of the injury. He was accordingly taken to the Medical Trust Hospital, Ernakulam. The injury noted by PW1 was a large lacerated wound with bleeding on the left side of his scalp. She further stated that the injury was 'Periosteum deep'. During cross-examination, it was suggested to her that such an injury could be caused by a fall on the floor or fall on a broken bottle. PW2 denied both the said suggestions. She asserted that the injury was so serious and an attack using a weapon could in all probability be the cause for it.

The medical evidence adverted to above necessarily corroborates the evidence of PW2 that he was assaulted using a knife. The cause of injury was stated to PW1 Cr.Appeal No.959 of 2007 8 immediately after the incident. Therefore, the cause of injury noticed in Ext.P1 that the appellant had attacked and inflicted the injury using a knife can be used for corroboration under Section 157 of the Indian Evidence Act, 1872.

On the very next day, while PW2 was in the hospital, PW9, a Head Constable, reached there and recorded the F.I. Statement from him. Ext.P2 is the said statement. The narration in Ext.P2 also tallies with the oral testimony of PW2 before the court. Therefore, the assertions in Ext.P2 also render corroboration to the oral testimony of PW2.

The aforesaid evidence proved beyond doubt that the appellant attacked PW2 using a knife and inflicted him a serious injury to his head. The evidence of the injured is cogent. He was attacked by the appellant without any provocation. It can only be termed as a voluntary attack. The evidence of PW2 is sufficiently corroborated by the oral testimonies of PWs.3 to 5, the medical evidence and Ext.P2. The injury was 'periosteum deep' on the left side of the head, a vital part of the person. When such a serious injury was Cr.Appeal No.959 of 2007 9 inflicted using a dangerous weapon, the knowledge that by his act there was every likelihood of causing death of the victim can definitely be attributed to the assailant. In the circumstances, I am of the view that the appellant is proved to have committed an offence punishable under Section 308 of the IPC. The findings of the court below in this regard are devoid of any infirmity and are not liable to be interfered with.

The appellant was sentenced to undergo simple imprisonment of two years and to pay a fine of Rs.5,000/-. Incident had occurred on 26.11.2002. The appellant was convicted on 26.05.2007. A long period has lapsed after the incident and the appellant suffered the trauma of trial all throughout. The learned counsel for the appellant would submit that the appellant hails from a poor family having a family to be looked after. He did not involve in any other crime, and he is entitled for a lenient view in the matter of sentence.

Having considered the aforesaid facts and circumstances, I am of the view that the sentence is liable to Cr.Appeal No.959 of 2007 10 be modified. Hence, the appellant is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.20,000/-. If the appellant fails to pay the fine amount, he shall undergo rigorous imprisonment for a period of two months. If the fine amount is realised, the same shall be paid as compensation to PW2. The appellant is entitled to set off the period during which he was in custody in connection with this case, if any. This appeal is accordingly allowed in part. Sd/- P.G. AJITHKUMAR, JUDGE dxy/dkr