Radhakrishnan @ Sasi vs State Of Kerala

Bechu Kurian Thomas, J

Revision petitioners were the accused in S.C. No.14 of 1994 on the files of the Additional Assistant Sessions Court, Kottayam. By judgment dated 03.06.1998, they were found guilty of various offences, including section 307 of the Indian Penal Code, 1860 (for short 'IPC'). On appeal, the learned Additional Sessions Court, Kottayam in Crl.Appeal No.72 of 1998 confirmed the conviction and sentence imposed upon them. Hence this criminal revision petition. During the pendency of this revision, the second and third revision petitioners died, and the first revision petitioner, being one of the legal heirs of revision petitioners 2 and 3, sought permission to continue the proceedings in view of section 394 of the Cr.P.C.

Property disputes between the accused and the defacto complainant led to an incident in the morning of 25.04.1993. When the defacto complainant was cutting the branches of plants on the boundary, the accused became agitated and, pursuant to an altercation between them, came with choppers in their hands with the intention to kill the defacto complainant. Fearing for his life, when the defacto complainant ran into his house, the accused followed him and inflicted injuries on his body. Hearing the sound and cries, the third accused also came to the spot with a chopper and inflicted a cut injury on PW2, who tried to obstruct and dissuade the third accused, who had also inflicted severe injuries on the ribs and backside of the defacto complainant.

When PW3 tried to prevent the third accused from attacking them, she also sustained injuries at the hands of the third accused. The accused are thus alleged to have committed the offences punishable under sections 452, 324 and 307 read with section 34 of IPC.

In order to prove the prosecution case, they examined PW1 to PW20 and marked Ext.P1 to Ext.P18, apart from material objects MO1 to MO6. The defence marked Ext.D1 to Ext.D3(c), which are all portions of the statements of witnesses.

The trial court found all the accused guilty of the offences under sections 452, 324 and 307 of the IPC. As far as the sentence was concerned, the trial court imposed two years of rigorous imprisonment on accused 1 and 3 for the offence under section 452 IPC, apart from a fine of Rs.1,000/- each and, in default to undergo simple imprisonment for three months. For the offence under section 307 IPC, accused 1 and 3 were imposed with a sentence of rigorous imprisonment for a period of four years, while for the offence under section 324 IPC, they were imposed with a fine of Rs.1,000/- and in default to undergo simple imprisonment for three months. Regarding the second accused, she was imposed with simple imprisonment for one year under section 452 IPC and a fine of Rs.500/- for the offence under section 324 IPC and, in default, to undergo simple imprisonment for one month. For the offence under section 307 IPC, she was imposed with simple imprisonment for two years. All the sentences were directed to run concurrently.

The appeal filed as Crl.A. No.72 of 1998 before the Additional Sessions Court, Kottayam was dismissed, confirming the conviction and sentence imposed upon the accused.

Sri. Arjun Sreedhar, the learned counsel for the first revision petitioner, vehemently contended that the prosecution had miserably failed to prove its case beyond reasonable doubt, and both the courts had erroneously found the accused guilty. According to the learned counsel, the nature of injuries allegedly inflicted and the circumstances of the case would not bring home the guilt of the accused under any of the provisions alleged, especially that of section 307 IPC. The learned counsel urged this Court to acquit the accused, especially since there were civil disputes between the parties and also submitted that even if it is assumed that the prosecution case is correct, the incident occurred since PW1 had taken the law into his hands. In any event, the learned counsel submitted that, even if the entire prosecution case is admitted, the accused would have been acting in exercise of their right of private defence of property and, therefore they are entitled to the benefit of exceptions.

Sri. Noushad K.A., the learned Public Prosecutor, on the other hand, contended that the trial court and the appellate court had lawfully appreciated the evidence of the case and arrived at the conclusion regarding the guilt of the accused. According to the learned Public Prosecutor, the evidence adduced clearly proves that the accused had, with the intention to cause the death of PW1, ran behind him and attacked with choppers in their hands and inflicted serious injuries, which are evident from the wound certificate as well as the deposition of the doctor. It was pointed out that as a court of limited jurisdiction exercising revisional powers, there is nothing that warranted an interference on concurrent findings of fact and therefore, the criminal revision petition is only to be dismissed.

I have considered the rival contentions.

While appreciating the contentions of the learned counsel for the revision petitioners, it is necessary to bear in mind that the weapon of offence allegedly used by the first accused and the third accused have not been recovered. No explanation is also stated by the prosecution for non-recovery of the weapons. Even though non-recovery of a weapon used for the offence cannot be fatal by itself to the prosecution case, the circumstances arising in the instant case lends some credence to the submission of the learned counsel for the revision petitioners that there was no intention at all to murder the defacto complainant or even attempt to commit murder.

Though the prosecution alleged that there was a civil dispute between the parties, curiously, there is no evidence in the form of any judgment or order of the civil court to show that there exists a civil dispute between the parties. The injury noticed in the wound certificate, and the injury spoken to by PW1 varies. As per the deposition of PW1, his right palm was injured in the attack by the first accused, apart from a serious cut on his left wrist. A perusal of the wound certificate, however indicates that the injury sustained by PW1 is on the right wrist. This contradiction in the prosecution case, as discernible from the evidence of PW1, creates doubt on the prosecution case regarding the offence of section 307 IPC alleged against the accused. Apart from the above, the evidence of PW4 indicates that the first injury was caused when PW1 attempted to block the assault with the knife using his left hand, while PW1 to PW3 stated that the injury was caused when he attempted to block the assault with the right hand. The trial court shrugged aside this discrepancy, referring to it as a minor one. However, when the discrepancy is considered in the light of the wound certificate in comparison to the prosecution case, the discrepancy assumes significance as far as the offence under section 307 IPC is concerned.

On a reading of the depositions of PW1 to PW4 and other prosecution witnesses, there is nothing to indicate that the accused had attacked PW1 to PW3 with an intention or knowledge that death of the said witnesses would occasion although it is not necessary to attract the offence of section 307 IPC that the bodily injury must be capable of causing death. The intention to cause death must be discernible at least from the surrounding circumstances. In this context, the circumstances in which the act was allegedly committed must also be borne in mind. As per the prosecution case, there were civil disputes between the parties, and when PW1 was cutting the plants on the boundary side, the accused rushed towards him with a chopper in their hands. Even going by the prosecution case, there is no premeditation. In the absence of any intention to commit murder, a mere injury inflicted on the prosecution witness by the accused by itself, would not attract the offence under section 307 IPC.

The determinative question to attract the offence under section 307 IPC is intention or knowledge, as held in State of Madhya Pradesh v. Kedar Yadav [(2009) (17) SCC 280]. The offence of section 307 IPC is attracted depending upon the circumstances of each case, which includes the nature of the weapon used, the intention expressed by the accused at the time of the act, the motive for commission of the offence, the nature and the size of the injuries, parts of the body of the victim where the injuries were inflicted and the severity of the blows. All these factors have a bearing on the aforesaid question. Therefore, considering the circumstances of the present case, there is nothing to indicate that any of the acts of assault committed by the accused on the prosecution witnesses were done with the intention or knowledge that those acts will constitute murder. Hence this Court is of the view that the offence under section 307 IPC is not attracted in the instant case.

As relating to the offence under section 324 IPC, the nature of injury inflicted, that too with dangerous weapons like choppers, indicates that the accused had committed the offence under section 324 IPC. The conclusions arrived at by the trial court and the appellate court therefore do not warrant any interference.

What remains is the offence under section 452 IPC. PW1 has specifically deposed that the accused came running after him and into his house and attacked him with dangerous weapons. The evidence adduced was convincing enough for the trial court and the appellate court to arrive at a finding that the accused had committed house trespass and caused injuries on PW1 using dangerous weapons. The evidence of PW2 to PW4 who were the inmates of the house, also corroborated the testimony of PW1. Therefore there is no reason to interfere with such a concurrent finding of fact, that too in this revision petition.

Sri. Arjun Sreedhar, however, argued that the sentence imposed upon the accused for the offence under section 452 IPC ought to be varied considering the long period of time that has lapsed. He submitted that the substantive period of imprisonment may be reduced to the one already undergone, which was from 11.05.1993 to 07.06.1993. It was also submitted that the accused is willing to pay reasonable compensation to the defacto complainant for the offence under section 452 IPC and that the Court may enhance the compensation substantially considering the peculiar circumstances of the case.

In the decision in Dr. Jacob George v. State of Kerala [(1994) 3 SCC 430], after referring to the reasons for imposition of punishment in criminal law, which includes retribution, prevention, deterrence and reformation, the court concluded that the four reasons mentioned therein had achieved its purpose by keeping the accused inside the prison for about two months. Being satisfied that the purpose of imprisonment had been satisfied, the court modified the sentence of imprisonment to that already undergone and enhanced the fine from Rs.5000/- to Rs.1,00,000/-.

Again, in the decision in Nanda Gopalan v. State of Kerala [2014 (4) KLJ 665], a learned Single Judge of this Court modified the sentence of imprisonment from five years to two years and enhanced the sentence of fine and directed the same to be paid as compensation to the injured.

Though the accused cannot, as a right, claim a reduction in the sentence of imprisonment, the court is entitled to consider the circumstances of each particular case to arrive at a decision regarding the reduction of sentence.

In the instant case, the incident occurred in 1993, i.e. more than 30 years ago. Two out of the three accused have already expired, while the remaining accused is quite aged. No other criminal cases are reported against the first revision petitioner. In such circumstances, bearing in mind the principles of imposing punishments as mentioned in Dr.Jacob George’s case (supra), this Court is of the view that the sentence of imprisonment for the offence under section 452 IPC can be modified to the period already undergone but at the same time enhance the compensation.

For the offence under section 452 IPC, accused 1 and 3 were imposed with imprisonment for two years and a fine of Rs.1,000/- each, while the 2nd accused was sentenced to imprisonment for 1 year. For the offence under section 324 IPC, the 1st and 3rd accused were sentenced to fine of Rs. 1000/- while the second accused was sentenced to fine of Rs. 500/-. Since accused no.1 alone is alive, his conviction for the offences under sections 452 and 324 shall stand confirmed, while the conviction of the 2nd and 3rd accused is confirmed for the purpose of fine alone. The fine amounts imposed against accused 2 and 3 for the offence under sections 324 and 452 IPC stands confirmed. The fine amount imposed on the first accused for the offence under section 452 IPC shall stand enhanced to Rs. 50,000/- which shall be paid on or before 12-09-2023.

In the result, the conviction imposed on the first revision petitioner in S.C. No.14 of 1994 on the files of the Additional Assistant Sessions Court, Kottayam, as confirmed in Crl.A. No.72 of 1998 by the Additional Sessions Court, Kottayam, for the offences under sections 324 and 452 IPC are affirmed, but the sentence of imprisonment for the offence under section 452 IPC is modified to the period already undergone and the sentence of fine for the said offence shall stand enhanced to Rs.50,000/- (Rupees Fifty Thousand Only). The sentence of fine imposed on the revision petitioners 2 and 3 for the offence under sections 324 and 452 IPC shall stand affirmed. The conviction of the 1st accused for the offence under section 307 IPC is set aside and that against the 2nd and 3rd accused stands abated. The fine amount imposed on all the revision petitioners shall be deposited on or before 12.09.2023 and shall be paid to PW1 as compensation under section 357(1) of Cr.P.C.

Thus the criminal revision petition is allowed in part.