JUDGMENT

The judgment in S.C.No.1261/2006 on the files of the Additional District & Sessions Court (Adhoc)-I, Kollam dated 28.02.2011 is under challenge in this appeal filed by the sole accused therein.

2. Heard the learned counsel for the appellant and the learned Public Prosecutor appearing for the prosecution.

3. Scrutinized the verdict impugned and the records available. 3. The prosecution allegation is that, at about 3 p.m. on 02.08.2005, with intention to do away with PW2, the accused beat her repeatedly with a dangerous wooden stick and thereby PW2 sustained injuries, though she survived. On this premise, crime was registered alleging commission of offences punishable under Sections 324 and 308 of the Indian Penal Code (hereinafter referred to as ‘IPC’) by the accused. Thereafter, final report in the above line was also filed.

4. Learned Sessions Judge on completing the pre-trial formalities, started trial. During trial, PWs.1 to 8 and Exts.P1 to P6 were marked on the side of prosecution. No defence evidence was adduced.

5. On hearing both sides and on scrutinizing of evidence, the learned Sessions Judge found that the accused had committed offences punishable under Sections 308 and 324 of IPC and convicted the accused for the said offences and sentenced him as under:

“Accused is sentenced to undergo simple imprisonment for two years and to pay a fine of ₹5,000/-(Rupees five thousand only) for offence u/s 308 IPC, In default S.I for 3 months. No separate sentence was imposed for offence under Section 324 IPC. The period during which he is in custody shall be set off on the sentence.”

6. The learned counsel appearing for the appellant/accused argued that, in the instant case, learned Sessions Judge went wrong in finding that the appellant/accused had committed offences punishable under Sections 324 and 308 of IPC, since the evidence adduced by the prosecution would not justify the said finding. According to him, even though the injured, PW2, deposed in support of the prosecution stating that the accused beat her three times, two of them fell on her head, only one injury was noted by PW1, the doctor who had examined PW2 after the occurrence. According to him, the doctor given evidence that the injury is simple in nature. It is pointed out that two blows fell on the head of PW2 as deposed by her, the same would have caused atleast two injuries. It is submitted further that, as regards the third blow, PW2 had inconsistent versions and therefore, PW2’s evidence could not be given credence to act upon the same. It is pointed out further that, the wooden stick alleged to be used by the accused to beat PW2 was not seized as part of investigation and the same also shadows the credibility of the prosecution case. He also pointed out that, if at all reliance is given to the evidence adduced by the prosecution, the only offence to be found is one under Section 324 of IPC, since the prosecution evidence in no way would justify the knowledge of the accused to do away with PW2. Thus, learned counsel sought interference in the verdict impugned.

7. Dispelling these contentions, learned Public Prosecutor would submit that on scrutiny of the evidence of PW2, the contention raised by the learned counsel for the appellant that PW2 sustained only one injury, even though she suffered two blows, would not sustain since PW2 categorically deposed that both blows were fell on the same place and the same caused the single injury noted by the doctor.

8. It is pointed out that, beating PW2 twice on her head, a vital part of the body, takes in the knowledge of the accused to do away with PW2 and therefore, the commission of offence punishable under Section 308 IPC found by the Sessions Court is only to be justified. It is submitted by the learned Public Prosecutor further that, mere non-recovery of the weapon used to commit the offence would not take away the evidence of the injured witness supported by medical evidence to disbelieve the prosecution case and