IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 1^ST DAY OF SEPTEMBER 2022 / 10 TH BHADRA, 1944 CRL.A NO. 2456 OF 2007 AGAINST THE JUDGMENT IN S.C. 223/2007 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC-I), KOTTAYAM APPELLANT/ACCUSED:

JAYAPRAKASH @ PALA PRAKASHAN, S/O.GOPALAN NAIR, KUTTIYANICKAL VEEDU,, KOOROPADA VILLAGE, LAKKATTOR KARA.

BY ADV. SRI.SURIN GEORGE IPE RESPONDENT/CLAIMANANT:

STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV, SRI.DENNY DEVASSY, SR.GP THIS CRIMINAL APPEAL HAVING FINALLY HEARD ON

01.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Conviction and sentence imposed against the appellant in S.C.No.223/2007 on the file of Additional District and Sessions Judge, Kottayam is under challenge in this appeal.

2. The respondent herein is the State of Kerala represented by the learned Public Prosecutor.

3. Heard the learned counsel for the appellant as well as the learned Public Prosecutor.

4. The prosecution case in short, is as under:

On 04.04.2003 at about 8 p.m. at the public road in Puthukulam near to the shop building owned by Kottamangalam Vinayachandran the accused voluntarily caused grievous hurt to one Sanal Kumar by cutting with a sword with such intention and under such circumstances that if by that act he had caused the death of the above Sanal Kumar, he would have been guilty of murder and thereby committed the offence punishable under Sections 326 and 307 of I.P.C.

5. On the basis of FIS given by the defacto complainant, Pampady police registered Crime No.86/2003 and investigated the crime. Later on Final Report was filed before the Jurisdictional Magistrate and the case was then committed before the Sessions Court for trial and disposal. Later, the Additional District Judge, Kottayam tried the matter after complying pre- trial formalities. During trial, PWs.1 to 14 examined and Exts.P1 to P20 marked on the side of the prosecution. During cross-examination of PW2, Exts.D1, D1(a) and D1(b) documents got marked.

6. Thereafter, the accused was questioned under Section 313(1)(b) of Cr.P.C. and his explanation to the incriminating circumstances found in the evidence was recorded. But no defence evidence adduced apart from Ext.D3 document marked during the evidence of the prosecution.

7. Thereafter, on appreciation of evidence, the learned Sessions Judge found that the accused herein, committed offences under Section 326 and 307 of IPC. Accordingly, he was sentenced to undergo 1) Rigorous Imprisonment for 3 (three) years with a fine of Rs.5,000/- (Rupees five thousand only) in default, to undergo Rigorous Imprisonment for 6 (six) months under Section 326 of I.P.C. 2) Rigorous Imprisonment for 4 (four) years with a fine of Rs.10,000/- (Rupees ten thousand only) in default of payment of fine, to undergo Rigorous Imprisonment for 1 (one) year under Section 307 of I.P.C. 3.) If fine amount is collected, pay Rs.10,000/- (Rupees ten thousand only) to PW2 as compensation for rectifying his grievance, if any, under Section 357(1) of Cr.P.C.

8. While impeaching veracity of the verdict of the court below, the learned counsel for the appellant pointed out that the learned Sessions Judge went wrong in finding commission of offences under Section 326 and 307 of IPC. It is argued that as per Ext.P8, wound certificate prepared initially at Medical College Hospital, Kottayam at 9:00 p.m, no fracture noted. Subsequently, when the injured was taken to Matha Hospital, Thellakom, Kottayam, it was found that the injured sustained fracture left radius. Since the time gap between the 1^st examination and the 2^nd examination is 1:30 hrs, the fracture diagnosed as per Ext.P11 prepared at Matha Hospital, cannot be the basis to find that there was fracture to justify conviction under Section 326 of IPC. Thus the finding of the Sessions Court that the appellant committed offence punishable under Section 307 of IPC also is no j