MADHU @ SANKARAN, S/O. SUDHAKARAN vs STATE OF KERALA

The revision petitioner herein challenges the conviction and sentence against him under Sections 452, 324 and 326 IPC in C.C. No.256/1996

of the Judicial First Class Magistrate Court- III, Neyyattinkara. The prosecution case is that at about 8.30 p.m. on 1.11.1993, at a by-lane near

the house of one Ravindranath, the accused assaulted one Shabu and his friend Radhakrishnan, inflicted severe injury on the left hand of the said

Shabu with a dagger, causing amputation of his thumb, and when Radhakrishnan intervened to rescue Shabu, the accused assaulted Radhakrishnan

too. When Radhakrishnan ran off and took shelter at the house of Ravindranath, the accused chased him, trespassed into the said house, and

inflicted serious injury on the body of Radhakrishnan also with the same weapon. When the inmates of the house made a hue and cry, the accused

ran off and escaped with the weapon in his hands. The police registered the crime on the F.I.Statement given by the said Shabu. During

investigation, the police made an attempt to seize the weapon of offence by conducting a search at the house of the accused, but, it failed.

However, after investigation, the police submitted final report in court under Sections 452, 324 and 326 IPC. The accused appeared before the

learned Magistrate, and pleaded not guilty to the charge framed against him under the above sections.

The prosecution examined eight witnesses, and proved Exts.P1 to P5 documents in the trial court. When examined under Section 313 Cr.P.C.,

the accused denied the incriminating circumstances. The defence projected by the accused during trial is that the injured probably sustained injuries

in a scooter accident. The accused did not adduce any evidence in defence.

On an appreciation of the evidence, the trial court found the accused guilty. On conviction he was sentenced to undergo rigorous imprisonment

for two years under Section 452 IPC, to undergo simple imprisonment for one year under Section 324 IPC, and to undergo rigorous imprisonment

for two years, and to pay a fine of Rs. 3,000/- under Section 326 IPC. Aggrieved by the judgment of conviction dated 25.9.1998, the accused

approached the Court of Session, Thiruvananthapuram with Crl.A. No.402/1998. In appeal, the learned 1st Additional Sessions Judge,

Thiruvananthapuram confirmed the conviction and sentence, and accordingly, dismissed the appeal. Now, the accused is before this Court in

revision challenging the legality and propriety of the conviction and sentence.

On hearing both sides, and on a perusal of the materials, I find no ground or reason for interference in the findings and the conviction made by

the courts below concurrently against the revision petitioner. Of the eight witnesses examined in the trial court, PW1 and PW2 are the persons,

who sustained injuries in the incident. The Ext.P1 F.I.Statement was given by PW1. The consistent and definite evidence given by these two

witnesses is that while they were walking through the by-lane near the house of Ravindranath, the accused came from behind, holding a dagger in

his hands, and immediately attacked PW1 and inflicted injury on his left hand. When PW1 warded off the stab made by the accused, he sustained

amputation of his left thumb, and when PW2 intervened to save PW1, he was also assaulted by the accused. When PW2 ran off and took shelter

at the house of Ravindranath, the accused chased him with the dagger in his hands, and at the house, he inflicted a serious injury on his hand. When

the inmates of the house made hue and cry, the accused ran off and escaped, with the dagger in his hands. PW1 and PW2 stood firm to their

versions in cross examination also, regarding the factual aspects. PW1 was attacked at the by-lane, and PW2 was attacked at the house of

Ravindranath, which is only a few meters away from the by-lane.

PW5 is the doctor, who examined PW1 and PW2 at the hospital. The evidence of PW5 is that PW1 had traumatic amputation of his left thumb

at the MCP level with a clean incised wound, and PW2 had an incised wound 5x1x1 cms on the left hand on the wrist and the hypothenar

eminence with severe bleeding. The doctor also proved the Exts.P2 and P3 wound certificates. The medical evidence given by PW5 supports the

ocular evidence given by PW1 and PW2 regarding the severe injuries sustained by them, including amputation of the left thumb of PW1.

PW3 and PW4 are the independent witnesses examined by the prosecution. These two witnesses also corroborated PW1 and PW2, and thus,

supported the prosecution on all material particulars. Their evidence also is that injuries were inflicted on the body of PW1 and PW2 by the

accused with a dagger. So, I find no reason to disbelieve these witnesses, or to reject their evidence. They have no reason to give any false

evidence against the accused. Of course, it is true that PW1 and PW2 are involved as accused in one or two cases. That cannot be a reason to

reject their evidence, or to disbelieve them, if the evidence given by them on facts is otherwise acceptable and believable. PW6 is only an attestor

to the scene mahazar, and PW8 is the Head Constable, who registered the crime, and conducted investigation. His evidence shows that he had

made attempts to recover the weapon of offence involved in this case. Though he conducted a search at the house of the accused, nothing could

be seized. All the material witnesses are consistent regarding the weapon of offence, that it was with a dagger, the accused inflicted injuries on the

body of PW1 and PW2. When there is such specific and acceptable ocular evidence proving the incident, and also proving the nature of the

weapon of offence, it is quite immaterial that the weapon could not be recovered during investigation. However, attempt was made by the

Investigating Officer to recover it. I find that the prosecution case stands well proved beyond reasonable doubt.

The learned counsel for the revision petitioner submitted that the conviction under Section 452 IPC is unsustainable. Of course, PW1 sustained

injuries at the by-lane. According to the prosecution, PW2 sustained injury at the house of Ravindranath. The said Ravindranath, or the other

inmates of the house are not examined by the prosecution. What is punishable as house trespass under Section 452 IPC is criminal trespass made

into a house with the object of committing an offence there, or with the object of intimidating, or insulting, or annoying any person in possession of

the said house. Section 441 IPC defines criminal trespass as ""entry into or upon any property in the possession of another, and this entry must be

with the object of committing an offence, or intimidating, or insulting, or annoying any person in possession of the property."" Even according to the

prosecution, the accused left the house of Ravindranath after trespass, when the inmates of the house made hue and cry. The prosecution has no

explanation why no inmates of the said house was examined to prove the alleged house trespass. PW3 and PW4 have no case that they had gone

to the house of Ravindranath, or that they had run behind the accused to rescue PW1. In such circumstances, I feel it appropriate to set aside the

conviction under Section 452 IPC. However, it is the fact that the accused had inflicted injuries on the body of PW2 also with the same dagger,

whether it be at the by-lane, or at the house.

Now the question of sentence. The accused was at the prime age of 24 years at the time of the incident. Now, we are at the beginning of 2018.

The incident happened in November, 1993. The long lapse of 25 years will have to be considered by the court in choosing the appropriate

sentence. At the same time, the court cannot ignore the fact that one of the victims had sustained amputation of his left thumb at the MCP level.

Any way, on a consideration of all the relevant aspects, including the circumstances of the accused, I feel that a total sentence of rigorous

imprisonment for six months, besides a direction to pay adequate amount of compensation will be the proper and adequate sentence in this case.

In the result, the revision petition is allowed in part.

The revision petitioner is found not guilty of the offence under Section 452 IPC, and accordingly, the conviction and sentence against him under the

said Section will stand set aside in revision. But the conviction against the revision petitioner under Sections 324 and 326 IPC is confirmed.

However, the jail sentence imposed by the courts below under Section 324 IPC will stand modified and reduced to rigorous imprisonment for four

months, and the jail sentence imposed under Section 326 IPC will stand modified and reduced to rigorous imprisonment for six months. The fine

sentence under Section 326 IPC is set aside. In lieu of such modification and reduction, the revision petitioner is directed under Section 357(4)

Cr.P.C. to pay a compensation of Rs. 20,000/- to PW1, who sustained grievous injury, and an amount of Rs. 7,000/- to PW2. In case of failure

to make payment of compensation to the witnesses, or to anyone of them, the revision petitioner will have to undergo a default sentence of rigorous

imprisonment for six months each. The revision petitioner (accused) will surrender before the trial court within three weeks from this date to serve

out the sentence, and make payment of compensation voluntarily, on failure of which, steps shall be taken by the trial court to enforce the sentence,

and realise the amount of compensation, or to enforce the default sentence.