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2017 Supreme(Ker) 781
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. ABRAHAM MATHEW, J.
Ayyappan - Petitioner
Versus
State of Kerala S.I. of Police, Kumily, represented by The Public Prosecutor - Respondent
Crl. Rev. Pet. No. 336 of 2007
Decided On : 10-07-2017
For the Petitioner: Grashious Kuriakose
For the Respondent: K.B. Udayakumar
Direct evidence and nature of injuries are crucial in determining guilt. Motive is irrelevant when there is direct evidence to prove occurrence.
Headnote:
Assault - Indian Penal Code - The court found the petitioner guilty of the offence under Section 326 IPC, reducing the sentence to two years. The victim sustained injuries including an incised wound on the left side of the neck, left shoulder, and left leg. The court rejected the defense's claim of previous enmity and motive, emphasizing direct evidence and the nature of injuries.
Fact of the Case:
The petitioner was prosecuted for assaulting the victim with a chopper, causing injuries to the victim. The trial court found him guilty of the offence under Section 326 IPC and sentenced him to three years of rigorous imprisonment. The appeal was dismissed, and the conviction and sentence were challenged in this revision.
Finding of the Court:
The court analyzed the evidence and rejected the defense's claim of previous enmity and motive, emphasizing direct evidence and the nature of injuries. The sentence was reduced to two years of rigorous imprisonment.
Issues: Allegation of assault with a chopper, injuries sustained by the victim, previous enmity, and motive.
Ratio Decidendi: Direct evidence and nature of injuries are crucial in determining guilt. Motive is irrelevant when there is direct evidence to prove occurrence.
Final Decision: The Revision Petition is allowed in part, and the sentence imposed on the petitioner is reduced to rigorous imprisonment for two years.
1. On the allegation that the petitioner assaulted the victim with a chopper causing him an injury on the left side of the neck and another injury on the left shoulder and fracture of the left fibula he was prosecuted for the offences under Sections 308 and 326 of the Indian Penal Code. The trial court found him not guilty of the offence under Section 308 IPC, but, convicted of the offence under Section 326 IPC. For the offence under Section 326 IPC, he was sentenced to undergo rigorous imprisonment for three years. The appeal filed by him was dismissed by the learned Sessions Judge. The order of conviction and the sentence are challenged in this revision.
2. Heard the learned senior counsel appearing for the petitioner and the learned Public Prosecutor.
3. It is not in dispute that the victim (PW1) sustained the following injuries;
(i) Incised wound on the left side of the neck. It was 5 cm long and skin deep.
(ii) Incised wound over the left shoulder. It was 3 cm long and skin deep.
(iii) Incised bleeding wound in the outer aspect of the middle 1/3rd of the left leg. It was 10 x 8 cm long and bone deep. It cut the fibula and the muscle.
There is also no dispute that the petitioner and the victim were involved in the incident.
4. The petitioner and the victim were occupants of adjacent rooms in a workers quarters. At about 6.20 am on the date of the incident, the victim was giving water to his cow when he heard a voice from behind. When he turned back, he saw the petitioner coming to him with a chopper. The petitioner struck him with MO1 chopper causing him the injury on the left side of the neck. He again struck him with the chopper causing him the injury on the left leg. This is the evidence of PW1 (victim).
5. The learned senior counsel for the petitioner submits that there was previous enmity between the petitioner and the victim and on account of it, the latter attempted to assault the former with the chopper. In other words, according to the defence, the victim was the aggressor. The learned senior counsel submits that the victim sustained injuries when the petitioner attempted to wrest the weapon from the hands of the victim. He has brought to my notice that the petitioner sustained two injuries. It is seen from Ext.D2 that he had a lacerated wound over the left index finger (2 x 3 cm) and left middle finger (2 x 1 cm). It may be noted that they were superficial in nature and were not incised wounds. So, it is doubtful whether the injuries were caused with the chopper with which the victim was assaulted. It is not necessary for the prosecution to explain the minor injuries sustained by an accused. Moreover, it is pertinent to note that the victim (PW1) has a case that after he was attacked with the weapon, there was a tussle between him and the petitioner for the chopper. On seeing the neighbours coming to the place of occurrence, the petitioner allegedly took to his heels leaving the chopper at the place of occurrence. I cannot accept the defence version that the victim was the aggressor.
6. It is also the submission of the learned senior counsel that the prosecution purposefully omitted to examine Valliamma, who allegedly was at the place of occurrence when the incident took place. This cannot be accepted. In the examination in chief of PW1 (victim), his case is that Valliamma and others came to the place of occurrence only after he cried having sustained the injuries. On the other hand, the learned senior counsel submits that the evidence of PW2, PW3 and PW5 shows that Valliamma was at the place of occurrence at the relevant time. The evidence of these three witnesses only means that they reached the place of occurrence after Valliamma had reached. That does not mean that Valliamma was present at the place of occurrence when the victim was attacked.
7. The learned senior counsel also submits that the victim had a motive to attack the petitioner. It has come out in the evidence of the victim (PW1) that there was some
