Bennichan Joseph vs State Of Kerala

Johnson John, J

The appellant is the accused in S.C. No. 252 of 2007 on the file of the Additional District and Sessions Judge (Adhoc-II), Kottayam and he is challenging the conviction and sentence imposed on him for the offence under Section 326 IPC.

The prosecution case is that the accused was employed as a driver in the house of the father-in- law of PW1 at Peroor. Since the conduct and behaviour of the accused was not good, he was subsequently removed from that job. PW1, who is residing at Thiruvananthapuram came to Kottayam along with his business partner on 21.03.2007 for taking his wife and children to Thiruvananthapuram. Subsequently, while PW1 was in his wife's house, at about 9 p.m., the accused reached there and addressed PW1 in obscene words. Thereafter, at about 11 p.m., while PW1 was returning from the house of his friend, Kurian Koshy, at Peroor and when he was about to enter the car parked near the gate of the house of Kurian Koshy, the accused came running with a chopper in his hand and attacked PW1 with the chopper aiming his neck and when PW1 prevented the attack with his left hand, the tip of the chopper caused to hit on his neck and cheek causing injury and he also sustained comminuted fracture to his left hand and the accused is thereby alleged to have committed the offences under Sections 326 and 308 of IPC.

In the trial court, when the accused pleaded not guilty to the charge, PWs 1 to 9 were examined and Exhibits P1 to P7 and MO1 were marked from the side of the prosecution and from the side of the accused, Exhibits D1 to D5 were marked.

After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge, as per the impugned judgment dated 05.09.2008, found the accused guilty under Section 326 IPC, convicted and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/-and in default of payment of fine, to undergo simple imprisonment for six months.

Heard Sri. Aneer M. S., the learned counsel representing the learned counsel for the appellant on record and Sri. Vipin Narayan, the learned Senior Public Prosecutor and perused the record.

The point that arises for consideration in this appeal is whether the conviction and sentence passed against the appellant/accused is legally sustainable?

The learned counsel for the appellant argued that PWs 1 to 4 are interested witnesses and there are serious contradictions and omissions in their evidence and the prosecution has not produced the copy of the x-ray or treatment records of PW1 to prove that he sustained grievous hurt to attract the offence under Section 326 IPC. It is also argued that MO1, chopper, was not sent for forensic examination and that the Investigating Officer has not seized the dress worn by PW1 at the time of occurrence and the prosecution has also not examined any independent witness and therefore, the accused is entitled for the benefit of reasonable doubt.

The learned Public Prosecutor pointed out that the evidence of PW1, the injured victim, is supported by the evidence of PWs 2 to 4 regarding the occurrence and there is no reason to doubt the presence of PWs 2 to 4 at the place of occurrence and therefore, they are natural witnesses. It is also pointed out that the evidence of PW5 doctor and Exhibit P2, wound certificate, also corroborate the evidence of PW1 regarding the injury sustained and there is no material contradiction or omission in the evidence of the material witnesses, who supported the prosecution, and in that circumstance, there is no reason to interfere with the findings in the impugned judgment.

PW1 deposed that the incident occurred in between 10.30 p.m. and 11.30 p.m., on 21.03.2007 while he was returning from the house of Kurian Koshy at Peroor. According to PW1, while he was about to enter his vehicle, the accused came running by asking ‘will you remove me from job’ and attacked him with a chopper aiming his neck and when he resisted the blow with his left hand, the tip of the chopper hit on his neck and cheek and the chopper hit on his left forearm and he sustained injuries on his neck and cheek and fracture to the bone. The evidence of PW1 shows that from the place of occurrence, he was taken to Matha Hospital by his friend Kurian Kozhy and Raveendran and there he has undergone an operation. PW1 identified the accused and MO1 chopper before the court. PW1 also identified his signature in Exhibit P1, First Information Statement to the police.

PW2, Raveendran, is the business partner of PW1 and his evidence shows that on the night of 21.03.2007, he was also there in the house of Kurian Koshy and that at about 11 p.m., they came out of the house for proceeding to Thiruvananthapuram and when PW1 was about to enter his car, the accused attacked him with a chopper and that he saw the occurrence in the light in the gate and the street light.

PW3, Kurian Koshy, deposed that PW1, Thomas, and PW2, Raveendran, reached his house on the night of 21.03.2007 and that the incident occurred in between 10.30 p.m. and 11 p.m. According to PW3, while PW1, Thomas, was about to enter his car, he heard Thomas saying that Benny hacked him and at that time, PW3 and his son were following Thomas and Ravi towards the gate and the witness saw blood oozing from the left hand of PW1 and the accused escaping from there in his autorickshaw.

PW4 is the driver of PW1 and his evidence shows that while he was waiting inside the car, in front of the gate of the house of the owner of Hotel Maly and at about 11 p.m., while PW1 was about to enter the car, the accused came running from the front side of the vehicle with a chopper and attacked Thomas by asking whether he will remove him from the job. According to PW4, Thomas resisted the attack with his left hand and then Thomas sustained injuries on his left hand and right cheek and then the accused ran away. The evidence of PW4 shows that two lights were there on the pillar of the front gate and street light was also there.

The Chief Medical Officer of Matha Hospital, Thellakam, who examined PW1 on 22.03.2007 at 12.20 a.m. and issued Exhibit P2 wound certificate, is examined as PW5. The evidence of PW5 and Exhibit

P2 shows that PW1 sustained the following injuries:

Incised wound left forearm with comminuted fracture along 6 x 3 x 2 cm.

Incised wound occipital region 3 x 2 x 0.5 cm.

Incised wound left upper lip 2 x 1 x 1 cm

PW8 was the head Constable who recorded Exhibit P1 statement of PW1 after reaching Matha hospital on 22.03.2007 . PW9 deposed that while he was the Sub Inspector of the Ettumanoor Police Station, he registered Exhibit P5 FIR on the basis of Exhibit P1 statement of PW1 on 22.03.2007. Exhibit P3 is scene mahazar prepared by PW9 .

According to PW9, he arrested the accused on 29.03.2007 and Exhibit P7 is the report regarding the correct address of the accused. PW9 deposed that on the basis of the disclosure statement of the accused that he kept the chopper under the culvert in front of Peroor Post Office and that he will point out the said place and take out the chopper, if he is taken to that place and as led by the accused, he recovered MO1 chopper and the relevant portion of the disclosure statement of the accused in this connection is marked as Exhibit P4(a).

In cross examination, PW1 admitted that he was an accused in Crime No. 138 of 2007 of Ettumanoor Police Station. According to PW1, the said case was registered on the basis of a complaint by his former housemaid in Kottayam with the allegation that he misbehaved to her and that she filed the complaint when she was dismissed from the job. The copy of the FIS and FIR in the said case are marked as Exhibits D1 and D2.

But, a perusal of Exhibits D1 and D2 would show that the de facto complainant is the accused herein and the allegation is that PW1 and others attacked him at 8.45 p.m. on 21.03.2007. Even though the alleged occurrence in Exhibit D2 FIR is on 21.03.2007, the said FIR is seen registered only at 5 p.m. on 23.03.2007. The evidence of PW9, Sub Inspector of Ettumanoor Police Station, shows that he conducted the investigation in Crime No. 138 of 2007 and filed the final report stating that the allegations are false.

In cross examination, PW3 stated that he heard Thomas saying that Benny hacked him and he has not stated to the police that Thomas told him that it was Benny who ran away after hacking him and the said portion in the statement of PW3 to the police is marked as Exhibit D3.

In cross examination, PW4 stated that he has not stated to the police that suddenly a person came running from dark and the said portion in the statement of PW4 to the police is marked as Exhibit D4. According to PW4, PW1 has not kicked the accused at the time of occurrence and he has not stated to the police that even though PW1 kicked the accused, it did not hit on the body of the accused and the said portion in the statement of PW4 to the police is marked as Exhibit D5.

I find no reason to disagree with the finding of the trial court that Exhibits D3 to D5 cannot be accepted as material contradictions. It is well settled that when eyewitnesses are examined at length, it is quite possible for them to make some discrepancies and only when the discrepancies in the evidence of witnesses are so incompatible with the credibility of their version, the court will be justified in disbelieving their evidence.

In State of Uttar Pradesh vs. M.K. Anthony [AIR 1983 SC 48], the Honourable Supreme Court held that minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole.

The decision of the Honourable Supreme Court in Tahsildar Singh and another v. State of UP [AIR 1959 SC 1012] shows that the proviso to Section 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by Section 145 of the Indian Evidence Act and it would be doing violence to the language of the proviso, if the said statement be allowed to be used for the purpose of cross examining a witness within the meaning of the first part of Section 145 of the Indian Evidence Act. In the said decision, it was also held by the Honourable Supreme Court that the contradiction, under the Section, should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police officer and what he actually made before him.

PW1 is the injured witness and his evidence regarding the occurrence is supported by the evidence of PWs 2 to 4 and there is nothing to disbelieve the evidence of PWs 2 to 4 regarding the occurrence and their presence at the time and place of occurrence It is also well settled that the evidence of the injured witness has greater evidential value and unless compelling reasons exist, their statements are not to be discarded lightly. 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.”

As noticed earlier, the evidence of PWs 1 to 4 regarding the occurrence is supported by the evidence of PW5, doctor and Exhibit P2, wound certificate. But, the learned counsel for the appellant invited my attention to the evidence of PW5, doctor, in cross examination to show that PW5 has admitted that an x-ray was taken and that apart from the evidence of PW5 doctor and Exhibit P2 wound certificate, the prosecution has not adduced any reliable evidence to prove that PW1 sustained a comminuted fracture as alleged and that it is possible to confirm a fracture only by taking an x-ray or CT scan, unless the broken bone is visible through the injury.

To attract the offence under Section 326 IPC, the prosecution has to prove that the injury sustained is a grievous hurt coming under Section 320 IPC. It is true, fracture is a grievous hurt coming under Section 320 IPC. But, in spite of the evidence of PW5 that an x-ray was taken, the prosecution has not produced the same or the treatment records of PW1 to establish that he sustained a grievous hurt and in that circumstance, the finding of the trial court that the prosecution has proved the offence under Section 326 IPC against the accused is not legally sustainable and in this connection, the learned counsel for the appellant also cited the decision of this Court in P. Johnson and others v. State of Kerala [1998 ICO 2059].

The learned counsel for the appellant also argued that from the available evidence, it cannot be held that the accused committed the offence under Section 324 of IPC and in this connection, the learned counsel for the appellant argued that the Investigating Officer has not seized the dress worn by PW1 at the time of occurrence and that no steps were taken for scientific examination of MO1 chopper. But, the learned Public Prosecutor pointed out that the injured and the occurrence witnesses identified MO1 as the weapon of offence used by the accused and PW5, doctor, also stated that MO7 can cause the injuries noted in Exhibit P2 wound certificate.

The Hon’ble Supreme Court in State of Karnataka vs. K. Yarappa Reddy[(1999) 8 SCC 715], held as follows:

“It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well- nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case...."

As already noticed, the evidence of PWs 1 to 4 regarding the occurrence is reliable and trustworthy and their evidence is supported by the evidence of PW5, doctor, and Exhibit P2, wound certificate and therefore, on a careful re-appreciation of the entire evidence, I find that the prosecution has succeeded in proving that the accused voluntarily caused hurt to PW1 by using MO1, chopper, and thereby, committed the offence under Section 324 IPC.

In the result, the conviction and sentence passed against the appellant/accused for the offence under Section 326 IPC is set aside and he is found guilty and convicted under Section 324 IPC. Considering the nature of the offence and the facts and circumstances of the case, the accused/appellant is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for three months for the offence under Section 324 IPC.

The appeal is partly allowed as above. Interlocutory applications, if any pending, shall stand closed.