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SAKTHIVELU versus STATE OF KERALA

High Court of Kerala

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SAKTHIVELU v. STATE OF KERALA - CRL A No. 2195 of 2004 [2005] RD-KL 133 (20 October 2005)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 2195 of 2004

1. SAKTHIVELU, CONVICT NO.1275,
... Petitioner

Vs

1. STATE OF KERALA
... Respondent

For Petitioner :ADV.ASHALATHA VARMA(STATE BRIEF)

For Respondent :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT

Dated : 20/10/2005

O R D E R

.SP 2 .TM 3 .BM 3

R. BASANT, J.

j CRL.A.NO.2195 OF 2004 j j

Dated this the 20th day of October, 2005

j

JUDGMENT

j ((HDR 0 CRA 2195/04 -: # :- )) .HE 1 In this appeal the appellant - a prisoner in custody, assails the verdict of guilty, conviction and sentence imposed on him under Sec.308 of the IPC. He was found guilty and convicted under Secs.324 and 308 of the IPC. But in view of the sentence imposed under Sec.308 of the IPC, no separate sentence was imposed on him under Sec.324 of the IPC. Under Sec.308 of the IPC, he was sentenced to undergo rigorous imprisonment for a period of 7 years.

2. The prosecution alleged that at 2.30

a.m. on 12/11/2003 the appellant who was found under suspicious circumstaqnces in the courtyard of the house of P.W.1, inflicted serious injuries described in Ext.P8 on P.W.1 who tried to challenge and apprehend him. M.O.1 - a dangerous weapon was allegedly used to inflict the injuries.

3. Investigation commenced on the basis of Ext.P4 - FIR registered by P.W.6 on the basis of Ext.P1 - First Information Statement lodged by P.W.1 at 8.50 a.m. on the next morning at the hospital. Investigation culminated with the final report submitted by P.W.7 - Investigating Officer. Cognizance was taken. The accused denied the offences alleged against him. Thereupon, the prosecution examined P.Ws.1 to 8 and proved Exts.P1 to P8. M.O.1 was also marked. P.W.1, as stated earlier, is the injured and P.W.3 is his mother, who was residing in the same house along with P.W.1. P.W.1 had allegedly gone out of his house with his child to enable him to answer the call of nature. It was then that the accused was allegedly found in the courtyard of the house of P.W.1 under suspicious circumstances. The accused did not explain his presence and tried to run away. P.W.1 followed him and apprehended him near the house of P.W.2 - a neighbour. There was an altercation in the course of which the appellant allegedly took out M.O.1 knife and indiscriminately inflicted three serious injuries described in Ext.P8. P.W.2 - the neighbour as also P.W.5 his brother had seen part of the incident after they reached the scene. The accused was also apprehended at the scene. He was taken to the police and arrested. P.W.1 was taken to P.W.8 Doctor who issued Ext.P8 wound certificate. P.W.4 is a neighbour. He is not an eye witness. He had attested Ext.P2 seizure mahazar under which M.O.1 weapon used for the occurrence which was wrested from the possession of the appellant was handed over to the police by P.W.2. Ext.P3 is the scene mahazar and P.W.5 had attested the same.

4. The accused who was rendered legal assistance by a counsel appointed on State Brief did not dispute the incident proper. He took the stand that he had also come to the lane nearby to answer the call of nature and P.W.1 had unnecessarily attacked him. It was in the course of that incident that P.W.1 suffered injuries, it was suggested to witnesses in the course of cross-examination. He denied all circumstances when he was examined under Sec.313 of the Cr.P.C. He did not adduce any defence evidence - oral or documentary.

5. The learned Assistant Sessions Judge, on an anxious consideration of all the relevant inputs, came to the conclusion that it was safe to accept the version of P.W.1 about the manner in which he had sustained injuries. The evidence of P.Ws.1 to 3 and 5 is sufficint to establish the ingredients of the offences punishable under Secs.324 and 308 of the IPC, it was held. Accordingly, the learned Judge proceeded to pass the impugned judgment.

6. The appellant has been given assistance of a counsel on State Brief before this Court also. The learned counsel for the appellant assails the impugned judgment on three grounds. First of all, it is contended that it is not safe to place implicit reliance on the testimony of P.Ws.1 to 3 and 5. It is then contended that the injuries suffered by the accused have not been satisfactorily established. At any rate, in these circumstances, the appellant must be conceded the benefit of doubt, it is urged. The learned counsel further submits that the ingredients necessary to establish the offence under Sec.308 of the IPC have not been proved. The sentence imposed is excessive, it is finally contended.

7. P.W.1 had suffered injuries. His version is eminently supported by the injuries suffered on his person. He has no animosity against the appellant. The evidence of P.Ws.2, 3 and 5 do also broadly support the evidence of P.W.1. The appellant has no reasonable alternative case to advance. His theory that he was attacked by P.W.1 does not stand to reason, logic or commonsense. He has not explained his presence at the scene of the crime satisfactorily. The facts have been established beyond pale and controversy. That the appellant was having a weapon like M.O.1 in his possession and he inflicted injuries on P.W.1 remove the last trace of doubt, if any, on the acceptability of the version of the appellant. It is grossly unacceptable. The appellant was apprehended at the scene itself. The evidence of P.W.7 shows that the local people had produced the accused before the police. A total review of the evidence would clearly show that the accused had injuries on his person. Ext.P6 memorandum prepared by the Investigating Officer at the time of arrest shows that the appellant had injuries on his person. It can also be seen that there was an attempt initially not to reveal the apprehension of the appellant at the scene of the crime. This is evident from the fact that in Ext.P1 - First Information Statement the apprehension of the accused at the scene of the crime is not revealed clearly. The evidence of witnesses show that both the injured and the accused were taken to the hospital together.

8. I am totally dissatisfied with the investigation conducted in this case where the injuries on the accused are not proved. A perfect Investigator must certainly have placed before the Courts evidence about the nature of injuries suffered by the accused as indicated in Ext.P6. But in the facts and circumstances of this case, that inadequacy on the part of the Investigator cannot deliver any advantage to the accused. In a situation like that when the appellant was apprehended by the local people, it is only reasonable to assume that he must have been taken to task. It is precisely not to reveal the responsibility for such injuries suffered by the accused that the prosecution has not chosen to adduce any evidence or offer any specific explanation for such injuries. Though dissatisfied, on this record, I am satisfied that that dissatisfaction cannot deliver any undeservced advantage to the accused.

9. The next question to be decided is whether the acceptable evidence tendered can lead the court to enter a verdict of guilty under Sec.308 of the IPC. The verdict under Sec.324 of the IPC appears to be absolutely justified going by the nature of the weapon as also the nature of the injuries described in Ext.P8. The crucial question then is whether the ingredients of Sec.308 of the IPC have been established. Sec.308 of the IPC reads as follows: .SP 1 "......" i .SP 2

10. The crucial question is whether the infliction of the injury was with such intention or knowledge and under such circumstances that if death had resulted the appellant would be guilty of the offence of culpable homicide not amounting to murder. Intention has to be decoded by court having reference to the totality of the inputs available. The courts do not have any magic wand to take out intention or knowledge which lie embbeded deeply in the secret chambers of the heart/mind of the offender. Circumstances are crucial. A person who without any explanation makes himself present in the court yard of the house of another without any explanation as to the possession of a weapon like M.O.1 must certainly be attributed the requisite intention and knowledge. The case of the prosecution is that the appellant was found present in the premises, obviously, for the purpose of committing offences. The circumstances indicate convincingly that such presence could only have been for the purpose of committing the offences like house breaking, theft etc. The possibility of apprehension must have been foreseen by such a person and he must obviously have been armed with a weapon like M.O.1 to use the same when necessity arises. That precisely is what he is shown to have done. The nature of the weapon is described clearly in Ext.2P2

(R. BASANT, JUDGE)

Nan/ .PA .......T.L .JN

R. BASANT, J.

ORDER

j SEPTEMBER, 2005 j


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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