Pushpangadan vs State Of Kerala

A. Badharudeen, J

This appeal is at the instance of the sole accused in S.C.No.785/2003 on the files of the Additional Sessions Court, Pathanamthitta. The State of Kerala, represented by the Public Prosecutor, is arrayed as the sole respondent herein.

Heard Adv.Akash S, the learned Amicus curiae, appearing for the appellant/accused and the learned Public Prosecutor for the State, in detail. Perused the verdict under challenge and the records of the trial court.

In this case, the prosecution alleges commission of offences punishable under Sections 448 and 307 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short) by the accused. The specific case of the prosecution is that due to prior animosity towards the defacto complainant (CW1), since he refused to withdraw an earlier case, viz.,C.C.No.135/2002, launched by the defacto complainant, pending before the Judicial First Class Magistrate Court, Ranny, the accused, with intention to cause murder of the defacto complainant, criminally trespassed upon the northern-eastern corner of the northern varanda of the stationery shop situated on the eastern side of Paroor house, at 7.30 pm on 23.01.2003 and threatened to kill the defacto complainant. As a follow up, he caused injuries to the defacto complainant by beating on his head and in consequence thereof, the defacto complainant sustained injuries on his both hands and head, though he survived.

On committal of the matter before the Sessions Court, the same was made over to the Additional Sessions Court for trial and disposal. The trial court framed charge for the said offences and recorded evidence. On the side of prosecution, PW1 to PW10 were examined and Exts.P1 to P12 and MO1 and MO2 were marked.

After completion of the prosecution evidence, even though the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1)(b) of Cr.P.C, he did not adduce any evidence.

Thereafter, on evaluation of evidence, the learned Sessions Judge found that the appellant/accused is guilty for the offence punishable under Section 307 IPC, while acquitting him for the offence punishable under Section 448 of IPC. Accordingly, he was sentenced to undergo simple imprisonment for a period of one year and pay fine of Rs.1,000/- (Rupees one thousand only). In default of payment of fine, simple imprisonment for a period of one month also was imposed. The above conviction and sentence are under challenge in this appeal.

While assailing the conviction and sentence imposed by the trial court, the learned Amicus curiae vehemently argued that once the court found that the accused did not commit offence under Section 448 of IPC, the finding that the accused committed offence punishable under Section 307 of IPC by beating on the head of the defacto complainant, who was examined as PW1, is an impossibility. If so, for the said reason, the conviction and sentence are liable to be set aside. In this connection, the learned Amicus curiae given much emphasis to the evidence of PW7, the Village Officer, who prepared Ext.P6, site plan, which would suggest that it is not possible to criminally trespass upon the varandha because of two desks, one put up on the northern extremity of the showroom and the other put up on the eastern extremity of the shop room. He also argued that in the circumstances, the prosecution case is in the midst of doubts and thereby the accused deserves acquittal.

Per contra, the learned Public Prosecutor would submit that the finding of the trial court, merely relying on the evidence of PW7 and Ext.P6 that there is no possibility of criminal trespass, is wrong, even though no separate appeal has been filed by the State challenging the said finding. It is pointed out further that going by the evidence of PW1 and PW2, supported by PW4 , the Doctor, and Ext.P3 wound certificate dated 02.12.2006, the attack at the instance of the accused by using MO1, iron rod, has been established so as to find that the accused committed offence punishable under Sections 307 of IPC. In such view of the matter, the trial court is perfectly justified in finding commission of the said offence by the accused. Thus, the trial court verdict does not require any interference.

Having addressed the rival arguments, the points arise for consideration are;

Whether the trial court went wrong in holding that the accused committed offence punishable under Section 307 of IPC?

Whether the trial court verdict requires interference?

Reliefs to be ordered?

PW1 is the injured and the crucial witness who gave evidence in support of the occurrence. During chief examination his evidence is that he had been running a shop at Edakkulam Muri, Pallickamuruppel, situated on the western side of Vadasserikara Mandirampadi road, and his house also abutted the said shop. His version further is that the varandha and the small room attached to the house were used as the shop room. According to him, at about 7.30 pm on 23.01.2003, while he was sitting on the chair and reading newspaper, a person was found near the eastern wall. When the defacto complainant noticed that the said person was looking at him, he questioned the same. Soon Pushpangadan (the accused) jumped and reached near him along with an iron rod and attempted to kill him. Soon the accused beat on him and when he restrained the same by using his right hand, he sustained injuries on the right leg. The accused again beat on him and the same caused injury on the left side of his forehead. When he beat for the 3rd time, he fell down along with the chair. Seeing that, the daughter-in-law of the defacto complainant reached there and taken him inside the room and closed the door. Seeing this, the accused ran away from the spot. The statement of the defacto complainant was recorded while he was undergoing treatment at Govt.Hospital, Pathanamthitta and he supported Ext.P1 as the statement so recorded. He identified the accused as the assailant. Ext.P3 wound certificate proved through PW4 (Dr.Rajan) who prepared and issued Ext.P3. It has been stated in Ext.P3 that the cause of injury is assault by Pushpangadan by using a stick at 7.30 pm on 23.01.2003 and it was deposed so by the doctor. Apart from that, as per Ext.P3 wound certificate and evidence of PW2, two injuries were noted by the doctor, viz, (1) lacerated wound 3x1 cm over the top of scalp and (2) tenderness on the right forearm. The opinion as to the cause of injury would be as alleged and he also deposed that by using MO1, the injuries could be caused. It is pointed out by the learned Amicus curiae that the doctor opined that the injury could be caused by fall and coming into contact with any hard object. PW2 examined in this case is none other than the daughter-in-law of PW1, who rescued PW1. She supported the version of PW1 in similar terms. She also identified MO1 ‘iron rod’ as well as MO2 ‘thourthu’. It is discernible that PW3, an independent witness who is the nearby shop owner, turned hostile. He did not support the prosecution case. After recording the FIS as deposed by PW1, the Sub Inspector of Police, Ranni Police Station (PW9) registered FIR, alleging commission of offences punishable under Sections 448 and 307 of IPC, as Ext.P7, as deposed by him. PW7 is the Village Officer, who prepared Ext.P6 scene plan. Apart from that, PW5 was examined to prove Ext.P4 scene mahazar. PW10, the Investigating Officer, deposed about the recovery of MO2 ‘thorthu’ while preparing Ext.P4 scene mahazar. PW10 also given evidence that while the accused was questioned in police custody, by preparing Ext.P8 search memo MO1 ‘iron rod’ was recovered from the house of the accused and the same was identified through the accused and also got identified through the doctor.

In order to find out the ingredients under Section 307 of IPC, it is necessary to extract the said penal provision as such and the same reads as under:

“307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.”

Thus the ingredients are;

(i) That the accused did an act;

(ii) That the act was done with intention or knowledge and under such circumstances to cause a bodily injury as the accused knew to be likely to cause death or that such bodily injury was in the ordinary course of nature to cause death, or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury a is likely to cause death; and

(iii) That the accused had no excuse for incurring the risk of causing such death or injury.

In other words, the ingredients are;

(i) that the death of a human being was attempted;

(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and

(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as:

(a) the accused knew to be likely to cause death; or

(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury (see decision in Chimanbhai Jagabhai Patel v. State of Gujarat, reported in AIR 2009 SC 3223 : (2009) 11 SCC 273).

The first part makes any act committed with the intention or knowledge that it would amount to murder if the act caused death punishable with imprisonment up to ten years. The second part makes such an act punishable with imprisonment for life if hurt is caused thereby. Thus even if the act does not cause any injury it is punishable with imprisonment up to 10 years. If it does cause an injury and therefore hurt, it is punishable with imprisonment for life (see decision in Pasupuleti Siva Ramakrishna Rao v. State of Andhra Pradesh, reported in 2014 (2) Scale 417 : (2014) 5 SCC 369).

In the decision in State of Madhya Pradesh V. Saleem, reported in (2005) 5 SCC 554, the Court held that to sustain a conviction under Section 307 IPC, it was not necessary that a bodily injury capable of resulting in death should have been inflicted. As such, non-conviction under Section 307 IPC on the premise only that simple injury was inflicted does not follow as a matter of course. In the said judgment, it was pointed out that the court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. The position that because a fatal injury was not sustained alone does not dislodge Section 307, IPC conviction has been reiterated in Jage Ram v. State of Haryana, (2015) 11 SCC 366 and State of Madhya Pradesh v. Kanha, (2019)3 SCC 605. Yet, in Jage Ram (supra) and Kanha (supra), it was observed that while grievous or life threatening injury was not necessary to maintain a conviction under Section 307, IPC, the intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.

Now the crucial question arises for consideration is whether the finding of the trial court that the accused did not commit offence under Section 448 of IPC, on wrong appreciation of evidence by itself, is a reason to disbelieve the prosecution case in toto or whether the overt acts at the instance of the accused as discernible from the evidence already discussed would establish the ingredients for the offence under Section 307 of IPC.

In the instant case, the injuries sustained by PW1, as found in Ext.P3 wound certificate prepared by PW4, are, (1) lacerated wound 3x1 cm over the top of the scalp (2) tenderness on the right forearm. On measuring the size of MO1, the same is one having 103 cm length and a width of 10mm. When the accused beat on the head of PW1, he prevented the same by using his right hand and thereby he sustained tenderness on the right forearm. Thereafter, again the accused beat on the head and the same caused lacerated wound 3x1 cm over the top of the scalp and again when he was beaten, PW1 fell down along with the chair and he was saved by her daughter-in-law. It is strange to note that merely relying on the evidence of PW7, the village officer and Ext.P6, the scene plan, the learned Sessions Judge jumped into a conclusion that the accused did not commit offence punishable under Section 448 of IPC. On evaluating the evidence already discussed, the said finding is erroneous as the evidence would suggest that the accused reached near PW1 and beat on his head by using MO1 ‘iron rod’, with intention to cause his death. But he survived. In such a view, it could not be held that the acquittal of the accused for the offence under Section 448 of IPC is justifiable. However, no appeal preferred by the State challenging acquittal of the accused for the offence under Section 448 of IPC and therefore, this Court is not in a position to interfere with the acquittal. Holding that the said finding is erroneous, it has to be held that the evidence discussed in detail, proved the ingredients to attract the offence under Section of 307 of IPC and therefore, the trial court rightly convicted the accused and the said conviction does not require any interference. Coming to the sentence, the sentence is very reasonable, therefore, the sentence also, does not require any interference.

In the result, this appeal fails and is dismissed with direction to the accused to surrender before the trial court within four weeks from today. On failure to surrender, the trial court is directed to execute sentence as per law.

Registry is directed to forward a copy of this judgment to the jurisdictional court for information and compliance.