The credibility of injured eyewitnesses can sustain a conviction even in the absence of independent witnesses, provided their testimony is reliable.

JUDGMENT :

A. BADHARUDEEN, J.

Accused Nos.1 to 3 in S.C.No.701/2004 on the files of Additional Sessions Court, Thodupuzha, assail the conviction and sentence dated 25.09.2007 in the above case. In this appeal, State of Kerala is arrayed as the respondent.

2. I shall refer the parties in this appeal as `prosecution’ and `accused’ herein for easy reference.

3. This case was registered alleging commission of offences punishable under Sections 341, 447 , 307 and 294(b) read with 34 of the Indian Penal Code (`IPC’ for short), by the accused. The precise allegation is that at 7.30 a.m on 20.12.2001, accused Nos.1 to 3 and 5 along with the 4^th person, a juvenile in conflict with law, assaulted the defacto complainant with intention to do away him as well his wife. Thereby the defacto complainant and his wife sustained injuries though they survived. It is alleged by the prosecution that the defacto complainant sustained fracture on his head and other injuries; and his wife also sustained injuries.

4. After investigation when final report was filed alleging commission of the said offences, the learned Magistrate committed the case to the Court of Sessions, Thodupuzha, and the same in turn made over to the Additional Sessions Court-I, Thodupuzha. The learned First Additional Sessions Judge tried accused 1 to 3 and 5 (4^th person is a child in conflict with law). During trial, PWs 1 to 9 were examined, Exts.P1 to P12 and M.Os 1 to 4 were marked. The accused were questioned after pointing out the incriminating circumstances found in their evidence and were provided opportunity to adduce defense evidence. Then the accused examined PW6 as DW1 and proved Exts.D1 to D9.

5. On analysis of the evidence the trial court found that accused Nos.1 and 2 committed offences punishable under Sections 326 and 447 r/w 34 of IPC. Further the 3^rd accused was found guilty of the offence punishable under Section 447 of IPC. The 5^th accused was found guilty of the offence punishable under Sections 341 and 447 of IPC and the accused were sentenced as under:

“Accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for three years each and to pay fine of Rs.5,000/- (Rupees Five thousand only) each u/s 326 of IPC or in default to undergo simple imprisonment for six months each and to simple imprisonment for two months each under Section 447 of IPC.

Accused No.3 is sentenced to pay fine of Rs.500/- (Rupees five hundred only) or in default to undergo simple imprisonment for forty five days under Section 447 of IPC.

Accused No.5 is sentenced to pay fine of Rs.500/- (five hundred only) or in default to undergo simple imprisonment for fifteen days under Section 447 of IPC and to pay fine of Rs.500/- (five hundred only) u/s 341 IPC or in default to undergo simple imprisonment for one week.

Substantive sentences of imprisonment will run concurrently. Set off allowed.”

6. While assailing the conviction and sentence imposed by the trial court, the learned counsel for accused Nos.1 to 3 argued that in the instant case there is allegation of attack and counter attack and Ext.D2 certified copy of charge sheet in S.C.No.408/2005 proved by PW7 would substantiate the counter case. Even though the counter case was ended in acquittal, the learned counsel for the accused submitted that there is serious fallacy in the prosecution evidence. According to him, as per the final report filed, apart from PW1 and PW2 (CW1 & CW2), CW3 to CW8 also witnessed the occurrence. It is also pointed out that even as per the FIS, Jomon and George cited as CW3 and CW8 were present at the place of occurrence. But the prosecution neither took interest to examine CW3 to CW8 nor at least CW3 and CW8 to prove the occurrence. Hence, the prosecution failed to adduce best evidence to see the truth of the allegations in this case, where counter case was also registered. Therefore this flaw will go to the root of the matter and in such contingency the accused are entitled to get acquittal.

7. That apart, he als