Sreeni @ Sreenivasan And Ors @APPELLANT@Hash State Of Kerala

The revision petitioners herein are the four accused in S.C.No.305 of 1999 of the Court of Session, Thrissur. They challenge the conviction and sentence against them under Sections 341, 323, 326 and 307 IPC. They faced prosecution before the learned Principal Assistant Sessions Judge, Irinjalakkuda on the allegation that at about 10.00 p.m. on 13.11.1997 they quarreled with one Musthafa in front of his house, they assaulted him, wrongly restrained him, and also inflicted serious and grievous injuries on his body with a dagger in an attempt on his life, due to some previous enmity. The police registered the crime on the basis of the First Information Statement given by the brother of the injured. After investigation, the police submitted final report in Court.

All the four accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them. The prosecution examined 14 witnesses, and proved Exts.P1 to P9 documents in the trial court. The MO1 to MO3 properties including the weapon of offence were also identified during trial. The Exts.X1 and X2 case sheets were also proved at the instance of the prosecution. When examined under Section 313 Cr.P.C., all the accused denied the incriminating circumstances, and projected a defence of total denial. The accused examined one witness in defence, and Exts.D1 and D2 were also marked on their side. On an appreciation of the evidence, the trial court found all the four accused guilty under Sections 341, 326 and 307 IPC. On conviction, the first accused was sentenced to undergo rigorous imprisonment for seven years, and to pay a fine of Rs.25,000/-under Section 307 IPC, the accused Nos.2 to 4 were sentenced to undergo rigorous imprisonment for five years each, and to pay a fine of Rs.10,000/- each under Section 307 IPC, and the accused Nos.3 and 4 were sentenced to undergo simple imprisonment for one month each under Section 341 IPC. No separate sentence was imposed by the trial court under Section 326 IPC in view of the fact that the infliction of grievous injuries is covered by Section 307 IPC.

Aggrieved by the judgment of conviction dated 19.02.2001, the accused approached the Court of Session, Thrissur with Crl.Appeal No.98/2001. In appeal, the learned Third Additional Sessions Judge, Adhoc-I, Thrissur confirmed the conviction and sentence, and accordingly dismissed the appeal on 16.10.2003. Now the four accused are 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 reason or ground for interference in the findings and the conviction made by the courts below concurrently. Of the 14 witnesses examined in the trial court, PW2 is the defacto complainant who sustained serious injuries in the alleged incident, and PW1 is his brother who gave the Ext.P1 First Information Statement. PW3 is the wife of the injured, and PW4 is his son. MO1 was identified by the material witnesses during trial as the weapon of offence with which the accused inflicted serious injuries on the body of PW2. The said weapon was produced before the police by the first accused, and it was seized as per a mahazar. PW8 is an attestor to the Ext.P3 seizure mahazar, but he turned hostile. PW9 is the other arrestor to the mahazar, and he supported the prosecution. He was the Police Constable on duty at the police station on the date of seizure.

PW11 is the doctor who first examined PW2 at the Modern Hospital, Kodungallur, and issued the Ext.P5 wound certificate, and PW12 is the doctor who examined him at the Medical Trust Hospital, and issued the Ext.P6 discharge summary. The medical evidence given by these two doctors will show the gravity and the seriousness of the injuries sustained by PW2. He sustained injuries on 13.11.1997, and on 16.11.1997, he was referred from the Modern Hospital to the Medical Trust Hospital. The Ext.P5 wound certificate proved by PW11 will show that PW2 had sustained a very serious penetrating wound on the right hypochondrium with prolapse of greater omandum and profuse bleeding besides other injuries. The evidence of PW11 is that when the condition of the injured person worsened due to the complications of the serious injuries on the kidney and lever, he was referred to the Medical Trust Hospital.

The Ext.P8 discharge summary issued from the Medical Trust Hospital contains the details of the injury sustained by the victim, the details of the treatment given there, the details of the laprotomy findings made there, and also the pain and sufferings undergone by the injured for about 1 ½ months. Ofcourse, it is true that any particular injury is not grievous by nature. But the medical evidence regarding the complications of the injuries and the consequence of the injuries will convince the Court that the injured had to suffer much mentally and physically for about 1 ½ months, preventing him completely from following the ordinary pursuits.

PW1 is the brother of the injured. His evidence is that when he came in front of the house of his brother on hearing some sound of quarrel he saw his brother being attacked by the accused. The accused Nos.3 and 4 caught hold of him and the first accused hit on the forehead of PW2, due to which he fell down. Then the second accused gave a dagger to the first accused and exhorted to kill him. Just then the first accused inflicted a serious stab wound on the abdomen of PW2. This is the evidence given by PW2 and others also.

I find no reason to disbelieve PW1 to PW4, or to reject their evidence on factual aspects. This is a revision, and not an appeal. The appellate court has maticulously and elaborately dealt with the factual aspects, the evidence adduced by the material witnesses, and also the medical evidence. As revisional court, this Court cannot probe into the factual aspects, and this Court's concern must be whether there is any illegality or impropriety or irregularity in the findings of the courts below, or the conviction made by the courts below. I do not find any such illegality or infirmity in this case.

PW2, the injured has given definite and consistent evidence explaining how he sustained serious injuries including a fatal injury on his abdomen. His evidence is fully consistent with the description of the incident given by PW1 in the Ext.P1 First Information Statement. PW1 is also consistent with the statements in Ext.P1. These two material witnesses are corroborated substantially by PW3 and PW4. All the witnesses are consistent that the accused Nos.3 and 4 caught the injured by force and restrained him without allowing him to move forward, the second accused fisted on his forehead, and when the injured fell down, the first accused inflicted a fatal stab on his abdomen with the MO1 dagger given by the second accused. It is quite clear that it was a calculated assault and attack made by the four accused in an attempt on his life. The seriousness of the injuries is revealed by the Ext.P6 discharge summary, the Ext.P5 wound certificate, and also the medical evidence regarding the complications of the injuries including the injuries on the kidney and the lever of the injured. It is quite clear that such an injury causing protrusion of the large intestine was inflicted by the accused quite voluntarily, and also in an attempt on the life of PW2. This is a case where the internal organs like lever and kidney were also injured. It is true that the learned Additional Public Prosecutor did not elicit specifically that the serious injury sustained by the victim would cause death in the ordinary circumstances. Such elements are not always necessary for a finding under Section 307 IPC. What the Court considers and evaluates is the nature of the injury as to whether it is simple or grievous or fatal, the consequence of the injury, it's complications, and also the injury caused to the internal organs. The particular part of the body where the injuries are inflicted, and the way in which the assailant inflicted the injuries are also very material and deciding whether the said injury was inflicted by the assailant in an attempt on the life of the victim. On a consideration of all these relevant aspects in this case, I find that the very serious injury on the abdomen of PW2 was inflicted by the accused quite voluntarily with the full knowledge of its consequence that it would injure the internal organs, and it is quite definite that such an injury was inflicted by the assailants in an attempt on the life of the victim. I find that the accused were rightly found guilty by the trial court and the appellate court.

As stated above, the Ext.P6 discharge summary gives a clear picture of the seriousness of the injuries. The medical evidence given by PW12 is not challenged by the defence. The only question put to the doctor by the defence is whether he had noted the depth of the injury. The defence practically accepted everything stated by the doctor regarding the complications of the fatal injury. I find that the medical evidence in this case will prove the necessary aspects under Sections 307 and 326 IPC.

Now the question of sentence. It is true that the fatal injury was inflicted by the first accused. But this does not mean that the others had no role or involvement in the acts of offence. The evidence given by the material witnesses will show that the accused persons came in front of the house of the injured as already decided and determined by them to make an attempt on his life. The fatal injury was inflicted by the first accused. On a consideration of the various aspects including the nature, the gravity, and the complications of the injury sustained by the victim, the circumstances of the offence, the age and circumstances of the accused, and also the long lapse of 21 years since the date of incident, I feel it appropriate to reduce the jail sentence. The trial court has also imposed fine sentence, and it is ordered to be given a compensation. I feel that rigorous imprisonment for two years will be sufficient in the case of accused Nos.2 to 4, and it can be rigorous imprisonment for three years in the case of the first accused. In lieu of such modification and reduction the fine amount will have to be enhanced, for payment of adequate compensation.

In the result, the conviction against the revision petitioners under Sections 341, 323, 326 and 307 IPC in S.C.No.305 of 1999 of the Court of Session, Thrissur is confirmed, and the revision petition is disposed of accordingly. However, the jail sentence imposed by the courts below under Section 307 IPC against the first accused is reduced to rigorous imprisonment for three years, and as against the others it is reduced to rigorous imprisonment for two years. The sentence under Section 341 IPC is maintained. The fine sentence under Section 307 IPC is enhanced to Rs.40,000/- as against the first accused, and to Rs.20,000/- each as against the accused Nos.2 to 4. 90% of the amount of fine collected shall be paid to PW2 as compensation under Section 357(1)(b) Cr.P.C. The default sentence imposed by the court below is maintained. The revision petitioners will surrender before the trial court within one month from this date to serve out the sentence, and to make payment of the fine amount voluntarily, on failure of which steps shall be taken by the trial court to enforce the sentence, and realise the amount of fine, or enforce the default sentence.