JAGAL, S/O. P.J. MARKOSE vs STATE OF KERALA

The appellant herein challenges the conviction and

sentence against him under Section 307 I.P.C in S.C

279/2003 of the Court of Session, Kottayam.

The prosecution case is that at about 8 p.m on

22.9.2002, at the telephone booth run by the wife of the de

facto complainant John, the accused assaulted him and

inflicted serious injuries on his body with a knife in an

attempt on his life. On the basis of the First Information

Statement given by the de facto complainant John, the

Police registered the crime. During investigation, the

weapon of offence was recovered by the Sub Inspector

under Section 27 of the Evidence Act. After closing the

investigation, the Sub Inspector submitted final report in

court. On committal, the case came up before the Court of

Session from where it was made over to the learned

Additional Sessions Judge (Adhoc)I, Kottayam for trial .

The Police submitted final report in this case

case under Sections 341, 323 and 307 I.P.C. The accused

appeared before the trial court and pleaded not guilty to the

charge framed against him under Sections 341, 323 and 307

I.P.C. The prosecution examined eight witnesses in the trial

court and proved Exts.P1 to P11 documents. The MO1 to

MO3 properties were also identified. MO1 is the weapon of

offence identified by the material witnesses. When

examined under Section 313 Cr.P.C, the accused denied the

incriminating circumstances and projected a defence of

total denial. He did not adduce any evidence in defence.

On an appreciation of the evidence, the trial court

found the accused not guilty under Sections 341 and 323

I.P.C and accordingly he was acquitted of those offences.

However, the accused was found guilty under Section 307

I.P.C. On conviction, he was sentenced to undergo rigorous

imprisonment for four years and to pay a fine of 4000/- by

judgment dated 30.11.2004. Aggrieved by the judgment of

conviction, the accused has come up in appeal.

Before discussing the evidence as regards the

assault made by the accused, let me examine whether the

conviction in this case under Section 307 I.P.C can be

sustained. PW1 is the de facto complainant who sustained

injuries in the incident, and PW8 is the Doctor, who proved

the Ext.P11 wound certificate issued by the Doctor who

actually examined and treated the injured at the hospital.

PW8 is not the Doctor, who treated the patient at the

hospital, and so his evidence regarding the things noted by

the other Doctor cannot be given much weight. However, he

proved the wound certificate containing the description of

the injuries noted by the Doctor on the body of PW1. The

injuries noted in Ext.P3 wound certificate are (1) an incised

wound over the left chest wall just medial to the left nipple

2x0.5 cms cutting the muscles and (2) an incised wound

over the left iliac crest 2x0.5 cms cutting the muscles and

reaching the bone. The Doctor stated that the injury No.1

may cause death in the ordinary circumstances. Being not

the Doctor who examined the injuries and noted the features

of the injuries, this evidence cannot be accepted by the

court without clear medical materials supporting the

versions. The Doctor did not explain how the injury No.1 is

fatal in nature. By nature the injuries are simple, and no

injury, by nature, is grievous. The wound certificate will not

show that any vital organ of the injured was cut. The

learned counsel cited a decision of the Hon''ble Supreme

Court in Sarju Prasad v. State of Bihar [1965 KHC 566]

where the Hon''ble supreme Court reversed the findings

under Section 307 I.P.C in a case where no vital organ of the

injured was cut with the weapon of offence. Anyway, in this

case I find that in the absence of proper supporting

materials including medical materials, the versions of PW8

who had not actually seen and examined the injuries at the

hospital cannot be accepted to find a case under Section

307 I.P.C. The evidence given by the victim also does not

contain the essentials of the offence. What is at the best

proved is infliction of simple injury with the MO1 weapon of

offence which is identified by the material witnesses. Thus, I

find that what is at the best proved is the offence under

Section 324 I.P.C

Of course there is only the evidence of PW1 to

prove the incident. The other witnesses examined by the

prosecution turned hostile. PW3 and PW4 are not actually

incident witnesses. According to PW1, when these two

witnesses came at Telephone booth the accused also came

there. When the accused misbehaved towards PW4, PW1

questioned this, and just then the accused left the place.

After PW3 and PW4 left the place, the accused again came

at the telephone booth, picked up a quarrel with the PW1,

and during this, he took the MO1 knife and inflicted injuries

on his body. These are the versions of PW1 in the Ext.P1 F.I

Statement also. Thus, he is substantially consistent with the

versions in the complaint, and in cross-examination, the

defence could not bring out anything to discredit the

versions of PW1. The MO1 knife was recovered by PW7 at

the instance of the accused under Section 27 of the

Evidence Act. The said recovery stands proved by PW7. I

find no reason to reject his evidence. Just because there is

no independent evidence, the evidence given by the Police

Officer cannot be suspected or rejected. The weapon

recovered by him was well identified by the victim.

PW1 has given clear evidence and it is

blemishless, that the injuries were inflicted by the accused

in this case with MO1 knife. MO1 knife is a dangerous

weapon. By nature, the injuries are simple. I find no reason

to disbelieve PW1. The only eye-witness turned hostile

during trial. The incident happened at the telephone booth

of the wife of the complainant. Of course, it is true that his

wife is not examined as a witness. If at all examined, the

defence would say that she is interested. Even without

such supporting evidence, I find that the evidence of PW1 is

quite convincing and satisfactory, proving the offence under

Section 324 I.P.C.

The sentence imposed by the court below is

rigorous imprisonment for four years under Section 307

I.P.C. This court finds that the conviction and sentence

under Section 307 I.P.C cannot be sustained and at the

best, the accused is punishable only under Section 324

I.P.C. On a consideration of all the relevant circumstances

including the age of the accused, the nature of the injuries

and the circumstance in which the incident happened, I feel

that a sentence of rigorous imprisonment for three months

will be the adequate sentence in this case.

In the result, this appeal is allowed in part. The

appellant is found not guilty of the offence under Section

307 I.P.C and accordingly the conviction and sentence

against him in S.C 2769/2003 of the court below under

Section 307 I.P.C will stand set aside. However, he is found

guilty in appeal for the lesser offence under Section 324

I.P.C and he is convicted thereunder. The appellant is

sentenced to undergo rigorous imprisonment for three

months under Section 324 I.P.C. He will get the benefit of

set off as already ordered by the trial court.