Conviction for grievous hurt under Section 326 IPC is sustainable despite acquittal for murder, as intent to kill was not proven yet injuries were confirmed.

COMMON JUDGMENT

K. V. Jayakumar, J.

These appeals are preferred impugning the judgment of the learned Additional Sessions Judge, North Paravur dated 11.04.2017 in S.C. No.265 of 2013. Criminal Appeal No.382 of 2017 is preferred by the accused Nos.1 to 4 and Criminal Appeal (V) No.09/2021 is preferred by the victim of the case. The appellant Nos.1 to 4 stood for trial for the offences punishable under Sections 447 , 427, 294(b), 323, 324 and 302 r/w 34 of the Indian Penal Code (‘ IPC ’ for the sake of brevity) and under Section 27 of the Arms Act .

2. By the impugned judgment of the learned Additional Sessions Judge, North Paravur, convicted the accused Nos.1 to 4 and sentenced to undergo rigorous imprisonment for five years each and to pay a fine of Rs.10,000/- each under Section 326 read with Section 34 IPC , with a default clause. They were also sentenced to undergo rigorous imprisonment for one year each under Section 427 and to undergo rigorous imprisonment for three months under Section 447 . However, the learned Additional Sessions Judge acquitted the accused for the offences punishable under Sections 294 (b), 323, 324 and 302 and Section 27 of the Arms Act .

The prosecution case

3. The prosecution case in brief is that on 10.10.2010 at about 10.45 p.m., the accused Nos.1 to 4 in furtherance of their common intention to commit the murder of Varghese, carrying deadly weapons like chopper, sickle, swords etc., came to the public road on the eastern side of the compound wall of the residential premises of PW1 (Devassy) and deceased Varghese, forcefully opened the gate in front of the house of PW1 and pushed it down and trespassed into the property. When the deceased Varghese, PWs.1, 2 and 6 questioned the aforesaid acts of the accused, the accused No.1 inflicted a deep cut injury on the right leg just above the foot of the deceased. When the witnesses attempted to take the injured to the hospital, the accused obstructed the vehicle. PWs.2 and 6 somehow managed to take the injured Varghese to hospital. However, owing to profuse bleeding from the cut injury, Varghese died.

4. On 11.10.2010 at about 01.30 a.m., PW1 (Devassy) lodged Ext.P1 FIS before the Aluva Police Station. On the basis of Ext.P1 FIS, PW19 (Nishad Ibrahim) the Sub Inspector of Police, Aluva, registered Ext.P1(a) FIR.

5. Thereafter, PW24 (A.V. Prabhullachandran), the Circle Inspector of Police took up the investigation. He prepared Ext.P2, inquest report. At the time of the inquest, he had seized MO-5 and MO-6, the dresses worn by the deceased. He has also seized MO-7 wooden stick, MO-8 hollow bricks, MO-9 series, pieces of granite stones, MO-10 broken pieces of roof tiles and MO-11 a pair of chappals as per Ext.P3 scene mahazar. He arrested the accused on 12.10.2010 at about 05.10 a.m., after preparing the contemporaneous documents. He has also recorded the confession statements of each of the accused.

6. As per the disclosure statement of accused No.1 Jomon, he has recovered MO-1 chopper from his tharavadu house. Ext.P6(a) is the relevant portion of the disclosure statement. As per Ext.P7(a), the relevant portion of the disclosure statement, MO-3 sword was recovered from the firewood shed of the house of accused No.2. Like wise, he was seized MO-4 sword at the instance of accused No.3 and MO-2 sickle at the instance of accused No.4. He identified the accused and the material objects.

7. As per Ext.P14 mahazhar, he had seized MO-12 shirt and MO-13 lungi, the dress worn by accused No.1 at the time of the incident. He had also seized the dress worn by accused No.2 (MO-14 shirt and MO-15 dhoti). PW24 had also seized