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State of Kerala Vs. Haridasan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1978CriLJ1204
AppellantState of Kerala
RespondentHaridasan
Excerpt:
.....of a sharp-edged instrument like a knife. it follows that where there are other reliable materials which enable the court to form an opinion and if on the basis of such materials the court enters a finding and convicts an offender, the finding and conviction are not liable to be interfered with on the ground of absence of evidence of a medical expert or of the wound certificate issued by him. but where the oral evidence is safe and reliable in proving the nature of the weapon used, the court need not base its conclusion on the point from the opinion of the medical expert gathered from an examination of the injury. 1 to 4 clearly makes out that the injuries were caused to p......to p.w. 1 by way of compensation. the first accused preferred crl. r.p. 109 of 1075 before the sessions judge, kozhikode. the learned sessions judge allowed the revision petition on the ground that there was no wound certificate to prove the nature of the injuries sustained. the court did not also choose to alter the conviction to one under section 323 i.p.c. the state filed an appeal against the order in revision and it stood registered as criminal appeal no. 411 of 1976.3. at the time of hearing the appeal, a preliminary objection was raised that the appeal itself was not maintainable. the argument was that under section 378 of the code of criminal procedure, an appeal would he only from an original or appellate order passed by a court other than the high court. the objection being.....
Judgment:
ORDER

Kumari P. Janaki Amma, J.

1. The respondent and 2 others were charge-sheeted by the Sub-Inspector of Police, Panniyankara for an offence under Section 324 read with Section 34 I.P.C.

2. P.W. 1 in the case was running a cycle shop at Kallai. There was a tailoring shop of one Chandran adjacent to the shop of P.W. 1, Some time prior to the incident in this case, there was a quarrel between Chandran and the first accused in the case, P.W. 1, who happened to be there, separated them. The first accused thereafter became inimical towards P.W. 1, On 27-8-71 at about 8 P. M. P.W. 1 was standing on the public road in front of his cycle shop, The first accused along with accused Nos. 2 and 3 who are his friends came there. The first accused had a knife in his hand. He exhorted P.W. 1 about a petition that he had filed against the accused before the police, Following this, he stabbed P.W. 1 with the knife, P.W. 1 warded off the first stab. But he was again stabbed on the left chest causing a bleeding injury. The 2nd accused caught hold of P.W. 1 and the third accused threw a glass bottle against P.W. 1. Thereafter the accused left the place. P.W. 1 was taken to the hospital, A case was registered against the accused. During trial, P.Ws. 1 to 3 end 5 were examined to prove the prosecution case. P.W. 3, however, did not support the prosecution and, therefore, was declared hostile and cross-examined. P.W. 8, Medical Officer sent Ext. P-3 to the police station wherein he stated that the injured was reported to have been stabbed on the chest by one Haridasan. The name of the first accused is Haridasan. P. W. 4 is the Head constable who investigated the case. P.W. 10, the Sub-Inspector of Police, verified the investigation and laid the charge. Relying on the evidence of the prosecution witnesses, the trial court convicted the first accused and sentenced him to rigorous Imprisonment for two months and a fine of Rs. 300. Accused Nos. 2 and 3 were, however, acquitted. In the appeal filed by the first accused before the Chief Judicial Magistrate, Kozhikode, the conviction was confirmed. But the sentence of imprisonment was converted to one of fine of Rs. 700. In default of payment of fine, he was to undergo simple imprisonment for six months. Out of the fine, an amount of Rs. 500 was directed to be paid to P.W. 1 by way of compensation. The first accused preferred Crl. R.P. 109 of 1075 before the Sessions Judge, Kozhikode. The learned Sessions Judge allowed the revision petition on the ground that there was no wound certificate to prove the nature of the injuries sustained. The court did not also choose to alter the conviction to one under Section 323 I.P.C. The State filed an appeal against the order in revision and it stood registered as Criminal Appeal No. 411 of 1976.

3. At the time of hearing the appeal, a preliminary objection was raised that the appeal itself was not maintainable. The argument was that under Section 378 of the Code of Criminal Procedure, an appeal would He only from an original or appellate order passed by a Court other than the High Court. The objection being well founded, the State made a motion to convert the appeal into a revision under Section 307 of the Code and it has been allowed. The scope of a revision being restricted, this Court is expected to examine only the correctness, legality and propriety of the order of acquittal passed by the learned Sessions Judge and the regularity of the proceedings before the courts below and pass such orders as are contemplated under Section 401 of the Code.

4. The contention put forward on behalf of the State is that since the trial court and the Chief Judicial Magistrate in appeal accepted the evidence tendered by the prosecution witnesses and found the accused guilty, the Sessions Judge should not have interfered with the conviction on the sole ground that there is no proper evidence that P.W. 1 had been examined by P.W. 8, the medical Officer as the certificate of such examination is not available, There is weight in the contention. The trial court mentioned that the evidence of P.W. 1 relating to sustaining of the injuries by P.W. 1 at the hands of the first accused has been corroborated by the independent evidence of P.Ws. 2, 3 and 4 that the defence has not been able to point out any major contradiction in their evidence. The court accepted the testimony of the abovementioned witnesses and concluded that the first accused stabbed P.W. 1 twice and one stab hit the hand of P.W. 1 while he warded off the stab and the other hit his left chest. Basing on the same evidence, the trial court held that the stab was inflicted with a knife. The court also relied upon the recovery of the sheath of a knife from the scene and Ext. P-3, the intimation issued by P.W. 8 wherein it is recorded that the injury was a dangerous one and observed:

Knife is admittedly a dangerous weapon and if it is used as a weapon of offence, it is likely to cause death.

The court convicted the accused under Section 324 I.P.C. The Chief Judicial Magistrate also referred to the oral evidence adduced, Ext. P-1 the first information statement and Ext, P-3, the intimation slip and confirmed the conviction,

5. The learned Sessions Judge had nothing to say against the testimony of P.Ws. 1 to 4, The court interfered with the conviction only because the certificate by the medical officer relating to the injuries had not been produced. It appears that P.W. 10, the Sub-Inspector approached the concerned authorities but did not succeed in getting at the wound certificate issued in respect of the injuries. P. W. 8, Asst. Surgeon, Government hospital, Calicut only proves Ext. P. 13, the Intimation sent by him stating that one Hassan Koya had been admitted in the hospital for injuries alleged to have been caused by stabbing on the chest by one Haridas. He expressed his inability to speak to the nature of the injuries in the absence of the wound certificate. According to the learned Sessions Judge, whether the incident spoken to by P.Ws. 1 to 4 had taken place on 27-8-1071, the date of issue of Ext. P-3 intimation could have been put to test if P.W. 1 had been examined by P.W. 8 and by the result of such examination, The learned Sessions Judge stated:

The prosecution case is that injuries had been inflicted on P.W. l by means of a sharp-edged instrument like a knife. The question whether the injuries found on the person of P.W. 1 were incised wounds or only lacerations, contusions or abrasions, was a very material question in the case, because the allegation made was that these injuries were caused by stabbing with a sharp edged knife. If on medical examination the injuries were found to be mere abrasions or contusions, the possibility of the accused stabbing P.W. l with a knife could have been ruled out. The omission to produce the wound certificate in this case, has, therefore, caused serious prejudice to the accused.

6. The learned Sessions Judge misguided himself and proceeded on a wrong premise. He has omitted to note that neither the Indian Penal Code nor the Code of Criminal Procedure nor the Indian Evidence Act insists that there should be the opinion of a medical officer as a condition precedent for convicting a person for an offence under Section 324 I.P.C. Section 324 I.P.C. stresses more on the nature of the weapon than on the form or gravity of the injury. The weapon referred to therein is 'any instrument for shooting, stabbing or cutting, or any instrument, used as a weapon of offence, is likely to cause death.' The Code of Criminal Procedure does not contain any provision which makes the evidence of a medical officer as to the nature of a particular injury indispensable. Section 45 of the Evidence Act only states that when the court has to form an opinion upon a point of foreign law or of science or art, or as to Identity of handwriting or finger impressions the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. It is thus evidence that a wound certificate or the opinion of a medical officer as to the nature of an injury or how it can be caused is relevant only to enable the Court to form its own conclusion on the point. It follows that where there are other reliable materials which enable the Court to form an opinion and if on the basis of such materials the court enters a finding and convicts an offender, the finding and conviction are not liable to be interfered with on the ground of absence of evidence of a medical expert or of the wound certificate issued by him. In such cases, it may not be proper to act on a presumption of prejudice to the accused. Actual prejudice must be established before a conviction is interfered with. The evidence of an expert being in the nature of opinion, its necessity arises only where direct evidence is not satisfactory or disinterested and where it is of that character as to require corroboration by way of opinion of an expert. It may be proper to set aside a conviction under Section 324 I.P.C. on the ground of absence of the expert opinion of a medical officer in a case where the evidence adduced falls short of proof as to the nature of the weapon used. In such cases, the opinion of a medical expert may be of assistance to the Court in forming an opinion whether a weapon of the category mentioned in Section 324 I.P.C. had been in fact used by the accused. But where the oral evidence is safe and reliable in proving the nature of the weapon used, the court need not base its conclusion on the point from the opinion of the medical expert gathered from an examination of the injury.

7. In the instant case, the evidence of P. Ws. 1 to 4 clearly makes out that the injuries were caused to P. W. 1 by stabbing with a knife. The recovery of the sheath corroborates the above evidence. Ext. P3, the intimation sent by P. W. 8 shows that a person having the same name as P. W. 1 was admitted in the hospital on 27-8-71 at 8-10 p.m. with injuries alleged to have been caused by stabbing by one Haridasan. The first accused is known by the name Haridasan. Ext. P3 supports the case of the prosecution that a stabbing instrument was used by the accused for inflicting the injuries on P. W. 1. In view of the conclusive nature of the evidence adduced by the prosecution, the acquittal of the accused by the Sessions Judge solely on the ground that the wound certificate had not been produced is not sustainable in law.

8. In view of Section 401(3) of the Code of Criminal Procedure, this Court is not expected to convert the order of acquittal into one of conviction. The only alternative left is to set aside the order of acquittal and call upon the Sessions Judge, Kozhikode to re-hear Cri. R.P. 103 of 1975,

The order acquitting the 1st accused-respondent is set aside. The Sessions Judge, Kozhikode will take up Cri.R.P, 103 of 1975 and dispose of it afresh in the light of what is stated above.


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