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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S. Sudha, J.
Babu @ Radhakrishnan S/O. Govindankutty Nair and ors. – Petitioners
Versus
State Of Kerala Rep. By Public Prosecutor – Respondent
CRL.A No. 1604 of 2006
Decided On : 17-06-2022
Code Of Criminal Procedure,1973 - Section 216, 216(2),313,357(1),374(2),464 – Indian Penal Code,1860 - Section 34,308,323,324,341 – Appeal - Court may alter charge – Power to examine the accused - Attempt to commit culpable homicide - Punishment for voluntarily causing hurt - Punishment for wrongful restraint - Whether conviction entered and sentence passed against accused by court below are sustainable or not - Whether injuries seen on PW1, could have been caused by a sharp-edged weapon like a sword - Section 216 Cr.P.C. says that Court may alter or add to any charge at any time before the judgment is pronounced. It is true that as per the provision, the court can amend the charge. But here is a case where the final report is seen amended after all the prosecution witnesses were examined. (Para 20).
Findings of the Court :
Those flaws in investigation cannot be a reason to throw out prosecution case - But aforesaid defects are not such that same can be brushed aside easily - Yet another serious flaw in investigation conducted is Ext.P7 report submitted by PW8. PW8 in Ext.P7 says that investigation so far conducted has not revealed that accused had any intention to assault or cause injuries to witnesses or that they had made any preparations for that or that they had any prior enmity towards witnesses or that they intended to commit culpable homicide and so investigation is being proceeded with, after deleting offence under section 308IPC - PW8, Police Officer who had conducted initial investigation and submitted Ext.P7, in chief examination deposed that he had accidentally/mistakenly submitted Ext.P7 before court and that he should not have given such a report - But in box also he does not have a case that his investigation did reveal commission of offence punishable under Section 308 IPC - No clarification or explanation is seen to have been asked by prosecutor relating to this aspect when PW8 was in the box - In cross examination he deposed that said report had been submitted after a major part of investigation had been completed - PW8 is seen to have offered quite a strange explanation for having submitted said report - He deposed that several crimes had been registered during new year, into which cases he was conducting investigation - While so, he was transferred due to which he was upset/worried - This according to him might have been reason for submitting report - Quite a strange explanation indeed
Result: Appeal allowed
JUDGMENT :
C.S. SUDHA, J.
In this appeal filed under Section 374(2) Cr.P.C, the appellants who are the accused in S.C.No.30/2004 on the file of the Sessions Court, Manjeri, challenge the conviction entered and sentence passed against them for the offences punishable under Sections 341, 323, 326 and 308 read with Section 34 IPC.
2. The prosecution case, as revealed from the final report filed by PW8, the Investigating Officer, is – the accused two in number, due to their enmity towards PWs. 1 and 5 and in furtherance of their common intention of assaulting and causing injuries to the latter, on 31/12/2002 at 10:30 p.m., wrongfully restrained them and voluntarily caused hurt by beating the witnesses with their hands. The 1st accused with a sharp weapon cut PW1 on both his shoulders and hip, causing grievous hurt on his left shoulder, thereby attempting to commit the offence of culpable homicide not amounting to murder. In the incident, PW5 sustained simple hurt. Hence as per the final report, the accused are alleged to have committed the offences punishable under Sections 341, 323, 324 and 308 read with Section 34 IPC.
3. Ext.P1 First Information Statement of PW1 was recorded by PW8, the then Sub Inspector of Police, Tirur Police Station, on the basis of which Ext.P1(a) FIR, i.e., Crime No.02/2003, was registered. The initial investigation by PW8 was followed by investigation by PW9, the next Sub Inspector, who completed the investigation and submitted the charge sheet before the Court. On appearance of the accused before the court below, charge was framed on 21.08.2004 for the offences punishable under Sections 341, 323, 326, 308 read with Section 34 IPC. Both the accused pleaded not guilty.
4. Prosecution examined PWs.1 to 9 and got marked Exts.P1 to P8 in support of their case. PWs.1 and 5 are the injured. PW2 is an attestor to the scene mahazar. PWs.3, 4 and 7 are the doctors who examined the injured. PW6 is an eye witness and PWs.8 and 9 are the investigating officers. Two eye witnesses, namely, Cws.4 & 5; CW 7, an attestor to the scene mahazar and CW 12, an Additional Sub Inspector, Tirur police station, who had taken steps for obtaining the wound certificates have been given up by the prosecution.
5. After close of the prosecution evidence, both the accused were questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of prosecution. They denied those circumstances and maintained their innocence. They also submitted a joint statement in which they state that PW1 and his accomplices, on almost a daily basis, assemble in a vacant plot situated to the back of the building by name A.K. building at Ambalakkulangara junction. The get together is followed by consumption of alcohol. All the said persons are active workers of DYFI and have criminal background. On 29.04.2006 at 04:45 p.m., some among the aforesaid persons had wrongfully restrained a lottery ticket dealer, namely, Balachandran at Ambalakkulangara junction and had voluntary caused hurt to him, relating to which a crime had been registered. On the date of the incident at 07:30 p.m., PW5 and others came to the hotel run by the 1st accused and picked up a quarrel with the latter and assaulted him. As the 1 st accused did not sustain any serious injuries, he did not immediately go to the hospital. It was only when he developed severe pain during the night, he went to the hospital and got necessary treatment. At 10:30 p.m. on the very same day, when the 1st accused was about to close his hotel, PW5 in a drunken stupor, approached and informed him that the latter and his friends were celebrating new year-eve and that they require food for 5 to 7 persons. The 1st accused replied that the hotel has been closed for the day; that the workers had already left and therefore it was not possible to serve food as demanded. This resulted in an altercation between them, followed by a scuffle. Hearing the commotion, the
SupremeToday
Section 216 Cr.P.C. says that Court may alter or add to any charge at any time before judgment is pronounced.
Point of law: There may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has ....
Convicting someone requires clear, consistent evidence; discrepancies in eyewitness accounts and lack of independent witnesses raise reasonable doubt, leading to acquittal.
The main legal point established in the judgment is the requirement for reliable and consistent evidence in criminal cases, as well as the need for corroboration in material particulars by reliable t....
Eyewitness testimony of injured parties holds significant weight; intention for murder requires clear evidence of premeditation and knowledge of potential injury, not merely a quarrel.
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