This appeal under section 374 of the Code of Criminal Procedure is directed against the judgment of conviction in S.C.No.240 of 2003 of the Court of Additional Sessions Judge (Ad hoc)-I, Kottayam. The appellant was the second accused along with three others in Crime No.705 of 1998 of Changanacherry Police Station. After completing the investigation, charge sheet was filed against all of them before the Court of the Judicial First Class Magistrate, Changanacherry under section 307 read with section 34 of the Indian Penal Code. It was taken on file as C.P.No.30/99. The other accused persons appeared before that Court and thereupon, the case against them were committed to Sessions Court, Kottayam and after assigning S.C.No.119 of 2001, it was made over to the Court of Additional Sessions Judge (Ad hoc)-I, Kottayam for trial and disposal. Charge under the aforesaid sections was framed against them. Meanwhile, the appellant appeared before the committal court before which this case was split up and refiled as C.P.No.4 of 2000. Later, on committal to the Court of Session, Kottayam and after following the procedures it was taken on file as S.C.No.240/2003 and made over to the same court for trial and disposal. Subsequently, it was clubbed with S.C.No.119/2001 and fresh charge under the same sections was framed against them. Ultimately, the trial court found them guilty under section 324 read with 34, IPC. Accordingly, they were convicted thereunder and sentenced to undergo rigorous imprisonment for three years each and to pay a fine of `5,000/- each and in default of payment of fine to undergo simple imprisonment for a further period of six months each.
2. The case of the prosecution is that on 2.12.1998, at about 7 p.m, PW8 was walking towards the house of one Thekkekara Sabu through Changanacherry-Kaviyoor Road and when he reached in front of the house of one Sathiamma, the accused with the common intention to commit his murder attacked him with sword stick and iron rod. Accused 1 and 3 attacked him with MO1 and MO3 sword sticks and accused 2 and 4 attacked him with MO2 and MO4 iron rods, respectively. The first accused using MO1 sword stick struck a blow towards him and PW8 sustained an injury over the right shoulder and while so, accused No.2/appellant with MO4 iron rod struck another blow below his right knee. On receiving that blow, he fell down and at that time accused 3 with the pointed end of MO2 hit below his left nipple and caused an injury and accused 4 with MO3 iron rod struck a blow on his head and caused injury over the right side of the forehead. Meanwhile, the 1st accused asked whether PW8 is dead or not and at the same time, with MO1 sword stick he struck a blow and caused injury on the left forearm of PW8. PWs 4, 5 and 7 took him in an autorickshaw to Chethippuzha Hospital, Changanacherry and from there, he was referred to Medical College Hospital, Kottayam. He remained there as inpatient from 2.12.1998 to 21.12.1998. On 3.12.1998, PW6 recorded Ext.P13 FI statement from PW8, the injured, based on which Ext.P13(a) FIR was registered. PW10, the then Circle Inspector of Changanacherry conducted the investigation and he filed Ext.P19 final report after completing the investigation before the court of Judicial first Class Magistrate, Changanacherry which ultimately led to the aforementioned sessions cases.
3. To substantiate the charge against them, the prosecution examined PWs 1 to 10 and marked Ext.P1 to P20 and MOs 1 to 4 were identified. After closing the prosecution evidence, the accused were questioned under section 313, Cr.P.C and they denied all the incriminating circumstances put to them. Finding that they were not entitled to be acquitted under section 232 Cr.P.C, they were called upon to enter their own defence. Thereupon, DW1 was examined on their side. However, no documentary evidence was adduced on their behalf. After evaluating the evidence and considering the arguments advanced on both sides, the trial court came to the conclusion that the prosecution has succeeded in proving the guilt of the appellant/accused under section 324, IPC and that the prosecution has failed to establish that they had committed an offence under section 307 read with 34, IPC. Accordingly, the accused were convicted under section 324 read with section 34, IPC as aforesaid. This appeal is filed by the appellant in S.C.No.240/2003 against the said judgment of his conviction.
4. I have heard the learned senior counsel appearing for the appellant and the learned Public Prosecutor. Various contentions have been raised by the appellant to contend that the trial court had failed to appreciate the evidence in their true perspective and it is the perverse appreciation of the evidence that led to their conviction. It is contended that Ext.P17 disclosure statement ought not to have been taken as a disclosure statement for the purpose of holding the recovery of MO2 to MO4 as a recovery under section 27 of the Indian Evidence Act against the accused 2 to 4. It is further contended that even against the first accused, Ext.P17 ought not to have been treated as disclosure statement as it did not reveal that he had made a statement thereunder regarding concealment of MO1. It is also contended that the court below ought to have found that there was no corresponding injury even to attract an offence under section 324, IPC against the accused. The court below failed to take into account the fact that all the independent witnesses turned hostile to the prosecution and therefore, it was unsafe to enter conviction against them solely relying on the testimonies of PW6, 8 and 10. The delay in the matter of recording the FI statement was also not taken seriously by the trial court. It is further contended that if the trial court properly appreciated the evidence on record, at least the benefit of doubt would have been given to appellant.
5. The learned Public Prosecutor contended that the evidence of PW8, the injured, itself was sufficient to find culpability on the appellants and despite thorough cross examination of PW8 nothing could be elicited from him to discard his evidence. Even the evidence of the hostile witnesses supported the case of the prosecution that PW8 sustained injuries in an incident that occurred on 2.12.1998 at about 7 p.m., it is further contended. The evidence of PW10 with the recovery of the weapons and Ext.P18 report regarding the presence of human blood in MO1 and MO2 would further lend support to the case of the prosecution. In short, it is submitted that the finding of the learned Sessions Judge that the prosecution has succeeded in establishing the guilt of the accused under section 324 read with section 34, IPC cannot be said to be the result of perverse appreciation of evidence and in fact, it is the result of a proper appreciation of evidence. In such circumstances, it is contended that no appellate interference is called for, in this case.
6. In the context of the rival contentions, it is only appropriate to scan the evidence adduced in this case. PW8 is the injured witness. The very case of the prosecution is that PW8 was attacked by the accused on 2.12.1998 at about 7 p.m owing to the hostility which they entertained against him for having given evidence against them in another case. PW8 deposed to the effect that on 2.12.1998 at about 7 p.m, he was walking towards the house of one Thekkekara Sabu through Changanacherry-Kaviyoor Road and when he reached in front of one Sathiamma's house he was attacked by the accused. He deposed that using MO1, the first accused struck a blow on him and he sustained an injury on his right shoulder. With MO4 iron rod the second accused struck a blow below his right knee and consequently he fell down and he further deposed that at that time the third accused gave a stoccado below his left nipple with the pointed end of MO2 sword stick. He also deposed that fourth accused struck a blow on his head with MO3 iron rod and he sustained injury on the right side of his forehead. He would also depose that at that time the first accused asked others whether he succumbed to death or not and then with MO1 sword stick struck another blow on him causing injuries on his forearm. According to his version, PW4 and PW5 took him to St.Thomas Hospital in Changanacherry and from there, he was referred to Medical College Hospital, Kottayam. He identified all the accused and also identified MO1 to MO4. He also deposed to the effect that while he was undergoing treatment in Medical College Hospital, Kottayam, Ext.P13 statement was taken from him. PW1 is the Chief Medical Officer attached to St.Thomas Hospital, Chethipuzha who issued Ext.P1 medical certificate noting down the wounds found on PW8 when he was brought to the said hospital. He would further depose that on 2.12.1998 at about 7.45 p.m, he examined PW8 and issued Ext.P1 wound certificate. He would also depose that after giving first aid, PW8 was referred to Medical College Hospital at about 8 p.m. PW2 was then working as Senior Lecturer in Orthopedics Department at Medical College Hospital, Kottayam and he deposed to the effect that on 2.12.1998 at about 10.50 p.m he examined PW8 and noted down the following injuries in Ext.P2:-
(1) 15x5x5 cms wound over the origin of deltoid, Right shoulder cutting the Rotator cuff muscles.
(2) 12x5x5 cms wound over the right arm cutting the Biceps, Brachialis, Brachioradialis and Radial nerve.
(3) 6x3x1 cms Muscle deep wound over right forearm.
(4) 2x1x1 cms wound over acromeoclayicular joint left.
(5) 2x1x1 cms wound over forehead right.
(6) 3x1x1 cms wound over chest left.
(7) Hypo voluemic shock.
7. He would depose that he issued Ext.P2 wound certificate and also opined that the injuries mentioned thereunder could be caused due to the reasons alleged. Later, he was examined on 4.11.2003 and he had produced Ext.P12 case sheet relating the treatment given to PW8 evidently, under orders of the trial court. Ext.P12 corresponds to Ext.P2 and PW2 stated that the details of the injury sustained by PW8 were noted in page 9 of Ext.P12 and it was marked as Ext.P12(a). The injuries noted in Ext.P12(a) corresponds to injuries recorded in Ext.P2. True that PWs 4, 5 and 7 turned hostile to the prosecution. However, a scanning of the testimonies would reveal that they lend support to the case of the prosecution to the extent that on 2.12.1998 at about 7 p.m, PW8 sustained injuries in an incident. In that regard it is also to be noted that DW1 was also cited as CW5 and his evidence would lend support to that extent to the case of the prosecution. Thus, evidence of PWs 8, 4, 5, 7 and DW1 and the evidence of PWs 1 with Ext.P1 and PW2 with Exts.P2, P12 and P12 (a) would go to show that PW8 had sustained injuries in an incident that took place on 2.12.1998 at about 7 p.m. The fact that he had sustained injuries as deposed by him while being examined as PW8 is evident from the evidence of PW1 with Ext.P1 and the evidence of PW2 with Exts.P2, P12 and P12(a).
8. PW10, the Circle Inspector deposed to the effect that when he questioned the first accused, he gave Ext.P17 disclosure statement. In pursuance of the information furnished by the first accused through Ext.P17 disclosure statement and as led by him PW10 reached the house belonging to the first accused which was under construction at a place called Chiravala Kalayippadi Bhagom, Nalukodi Kara, Payippadu village and took MO1 to MO4 from among the cluster of plantains on 23.1.1999 standing on the north-eastern corner of the compound. He seized MO1 to MO4 under Ext.P17 (a) mahazar in the presence of independent witnesses. At the same time, it is to be noted that none of the attesting witnesses to Ext.P17 mahazar were examined. True that MO1 to 4 seized under Ext.P17 (a) mahazar were sent to the court along with a forwarding note for sending MO1 and MO2 for chemical analysis. He deposed that Ext.P18 is the forensic science report revealing the presence of human blood in MO1 and MO2. He deposed that he had completed the investigation and filed the charge sheet. The learned counsel for the appellant contended that Ext.P17 information is a defective one and it could not be construed as a disclosure statement at all, for the purpose of section 27 of the Evidence Act in regard to the recovery of MO1 to MO4. The learned counsel for the appellant also challenged the recovery of MO1 to MO4 and contended that it would not fall under 'discovery' as envisaged under section 27 of the Indian Evidence Act. As regards first accused, the contention is that he had not stated anything regarding the concealment of the weapons recovered under Ext.P17(a) mahazar. In the light of the Division Bench decision of this Court in Sankara Narayanan v. State of Kerala [2006 (3) KLT 429] rendered relying on the decision of the Hon'ble Apex Court in Jaffer Hussein Dastagir v. State of Maharashtra [AIR 1970 SC 1934] and Mahabir Biswas v. State of W.B. [(1995) 2 SCC 25], it is contended that unless the authorship of concealment is established, recovery in pursuance of information stated to have been furnished by an accused would not fall under discovery as envisaged under section 27 of the Indian Evidence Act. There cannot be any inviolable position that in order to be a disclosure statement for the purpose of falling within purview of section 27 the pronoun 'I' need not be used by the concerned accused and if a reading of the statement in its entirety would undoubtedly reveal his authorship of concealment then, a recovery in pursuance of such informations furnished by the accused would be a 'discovery' as envisaged under section 27 of the Indian Evidence Act. Going by the case of the prosecution, MO1 is the weapon used by the first accused. PW8 identified the said weapon. Ext.P17 disclosure statement would reveal that pursuant to the information furnished by the first accused, it was seized under Ext.P17 (a) mahazar from among a cluster of plantains in the property belonging to him whereon construction of a building was going on. In such circumstances, the recovery of MO1 in pursuance of the information furnished by the first accused in Ext.P17 disclosure statement would definitely fall under 'discovery' as envisaged under section 27 of the Indian Evidence Act. A close scrutiny of Ext.P17 would reveal that the first accused had not stated that all the weapons used by others were concealed by him. That apart, a recovery made on the information of one accused cannot be used against another in the light of the decision of this Court in Kunnummal Mohammed v. State of Kerala [AIR 1963 Ker. 54]. At the same time, it is a fact that MOs 2 to 4 were also seized from the premises while effecting recovery of MO1 based on Ext.P17 disclosure statement made by first accused. The recovery of those weapons would ensure that the first accused was aware about the concealment of such weapons, as well, in the said premises. Going by Ext.P18 report, it revealed that MO1 and MO2 contained human blood. PW8 identified MO1 to MO4 and also deposed the manner in which they were used by other witnesses for the purpose of inflicting injuries on him. The injuries sustained by him as explained in his oral testimony would stand corroborated by the evidence of PWs 1 and 2; PW1 with Ext.P1 and PW2 with Ext.P2, 12 and P12(a). I have already noted that PW8 was cross examined at length. The defence could not elicit anything to show that he is not trustworthy. In the decision in State of M.P v. Mansingh [(2007) 2 SCC Crl.390], the Hon'ble Apex Court held that the evidence of injured witnesses and victims are of great value. The evidence of PWs 1 and 2 would reveal that when PW8 was taken to hospital after the incident, he was conscious. It is also to be noted that even at the time of recording of Ext.P13 FI statement, PW8 mentioned the name of the accused. The mere fact that he had not disclosed the names of the accused to PW2 when he was immediately taken to Medical College Hospital cannot be said to be a serious lapse. When the evidence of an injured is established as trustworthy it is of great evidentiary value. In this case, despite thorough cross examination, defence could not elicit anything to show that PW8 is not trustworthy and in such circumstances his evidence to the effect that it was the second accused who struck a blow on his right knee with MO4 iron rod is only to be believed. The evidence of PW2 with Ext.P2, P12 (a) would reveal that the corresponding injury is seen on the knee of PW8. In such circumstances, there is no reason to discredit the version of PW8 and also to doubt the culpability of the second accused. The prosecution has examined PW1 and his evidence would get corroboration to certain extent from the version of other hostile witnesses PWs 4, 5 and 7 and their evidence would virtually support the case of the prosecution that on 2.12.1998 at about 7 p.m, PW8 sustained injury and was seen in a pool of blood in the place of occurrence as alleged by the prosecution. In the light of the provisions under section 293 Cr.P.C even without examining the chemical examiner who conducted the examination it could be taken as evidence. PW10 would depose that he send the forwarding note for sending MO1 and MO2 for chemical examination and prove Ext.P18 as the report of the forensic science laboratory. Ext.P18 would reveal the presence of blood in MO1 and MO2. I am of the view that the finding of guilty of the second accused/the appellant under section 324, IPC read with section 34, IPC based on the evidence, as aforesaid, cannot be said to be the outcome of perverse appreciation of evidence, in the said circumstances. True that the case of the prosecution was that the accused attacked PW8 with an intention to commit his murder. The learned Sessions Judge found that had it been the intention of the accused the circumstances obtained would undoubtedly go to show that they could have accomplished that intention and they had sufficient opportunity to do so. At the same time, the manner in which they have inflicted the injuries on PW8 would reveal that they did not have the intention to commit murder of PW8. In such circumstances, the finding of the court below that the prosecution had failed to establish that the accused had committed the offence under section 307 is only a plausible view that could be arrived at based on the evidence. At the same time, the evidence of PW1 with Ext.P1, PW2 with Exts.P2, P12 and P12(a) and the nature of the injuries as revealed from the said documentary evidence would undoubtedly show that the finding of the court below that the accused had the intention to voluntarily cause hurt to PW8 using dangerous weapons and thereby committed the offence under section 324 cannot be said to be a perverse appreciation of the evidence. MO2 can only be said to be dangerous weapon. PW8 identified the weapon as weapon used by the second accused to attack him on 2.12.1998. As noticed hereinbefore, it is evident that in the said attack he sustained the injuries as mentioned in Exts.P12, P12(a). In such circumstances, it can only be said that all the ingredients to attract offence under section 324 has been established against the appellant by the prosecution. In such circumstances, the conclusion arrived at by the trial court that the appellant has committed the offence punishable under section 324, IPC calls for no appellate interference.
9. The learned senior counsel appearing for the appellant in such circumstances contended that taking note of the fact that the incident occurred as early as in 1998, sentence imposed against the appellant requires modification. Considering the present age of the appellant and the fact that the incident took place more than a decade the appellant is not to be imposed with the maximum sentence that could be awarded for an offence under section 324 IPC, it is contended. Evidently, in this case, the maximum sentence of imprisonment has been awarded to the appellant and he is also sentenced to pay a fine of `5,000/-. Taking note of the principles enunciated by the Hon'ble Apex Court in the matter of sentence and also taking into account the fact that the entire incident occurred more than 16 years back, I am of the view that a modification of the sentence imposed against the appellant is called for. I am of the considered view that three months rigorous imprisonment and sentence to pay a fine or `10,000/- and in default of payment of fine to undergo simple imprisonment for a further period of three months would be sufficient to meet the interest of justice and they would be comeuppance as regards the appellant. In such circumstances, while confirming the conviction of the appellant entered by the trial court under section 324 IPC, the sentence imposed against the appellant stands modified as rigorous imprisonment for a period of three months and to pay a fine of `10,000/- and in default of payment, to undergo three months simple imprisonment. This appeal is allowed in part. In case of recovery of fine of `10,000/-, the said amount shall be paid as compensation to PW8. Set off as per law shall be allowed. The judgment shall be transmitted to the trial court.
Sd/-
C.T. RAVIKUMAR (JUDGE) spc/ C.T. RAVIKUMAR, J.
JUDGMENT September, 2010