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Kerala High Court
Gavas vs State Of Kerala on 11 July, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 11TH DAY OF JULY 2025 / 20TH ASHADHA, 1947
CRL.A NO. 1383 OF 2007
AGAINST THE JUDGMENT DATED 24.07.2007 IN SC NO.834 OF
2005 OF SPECIAL COURT (SPE/CBI-I), ERNAKULAM (III ADDITIONAL
DISTRICT COURT, ERNAKULAM
APPELLANT/ACCUSED:
GAVAZ, S/O.SIDDIQUE,
MATHARUPARAMBIL VEEDU, VADIMARA BHAGOM,
PARUTHARA KARA, PARAVUR VILLAGE.
BY ADV SMT.SHANI.P
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY C.I. OF POLICE, N. PARUR,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SENIOR PUBLIC PROSECUTOR SRI RENJITH GEORGE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEAR ON
01.07.2025, THE COURT ON 11.07.2025 DELIVERED THE FOLLOWING:
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Crl.Appeal No.1383/2007 :2 :
"C.R"
A. BADHARUDEEN, J.
================================
Crl.Appeal No.1383 of 2007
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Dated this the 11th day of July, 2025
JUDGMENT
This appeal has been filed under Section 374(2) of the Code of
Criminal Procedure (`Cr.P.C‘ for short) and the appellant is the sole
accused in S.C.No.834 of 2005 on the files of III Additional Sessions
Court, Ernakulam. Respondent is the State of Kerala.
2. Heard the learned counsel for the appellant/accused and
the learned Public Prosecutor representing the prosecution.
3. The parties in this appeal shall be referred to as
`prosecution’ as well as `the accused’ hereinafter for easy reference.
4. The prosecution allegation is that the accused herein,
while engaged in illegal transport of river sand when intervened by the
police, with intention to do away, one Stanley, a police constable, put
down him from the lorry and ran over the lorry on him. Though Stanley
sustained injuries, he survived. Accordingly, the prosecution alleged
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commission of offences punishable under Sections 341, 333 and 307 of the
Indian Penal Code (`IPC‘ for short) as well as under Section 38 r/w
Section 52 of the Kerala Police Act and Section 22 r/w Section 20 of the
Kerala Protection of River Banks and Regulation of Removal of Sand Act
(`Sand Act‘ for short).
5. On committal, the case was made over to the learned
Additional Sessions Judge. The Additional Sessions Judge framed charges
for the offences alleged against the accused.
6. During trial, PW1 to PW21 were examined, Exts.P1 to
P17, M.O1 and M.O2 series were marked on the side of the prosecution.
Thereafter the accused was questioned under Section 313(1)(b) of Cr.P.C.
Although an opportunity to adduce defense evidence was given to the accused,
no defense evidence was adduced. Finally, the trial court found that the
accused committed the offences punishable under Sections 341, 333 and
307 of the IPC as well as under Section 38 r/w Section 52 of the Kerala
Police Act and Section 22 r/w Section 20 of the Sand Act and accordingly
he was sentenced as under:
“to undergo rigorous imprisonment for a period of 4
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years and a fine of Rs.10,000/- for the offence punishable under
Section 307 of the Indian Penal Code and in default of payment of
fine to undergo simple imprisonment for a further period of 3
months, imprisonment for a period of 3 years and a fine of
Rs.5,000/- for the offence punishable under Section 333 of the IPC
and in default of payment of fine to undergo simple imprisonment
for a further period of 2 months and a fine of Rs.250/- for the
offence punishable under Section 341 of the IPC and in default of
payment of fine to undergo simple imprisonment for a further
period of 10 days and a fine of Rs.100/- for the offence punishable
under Section 38 r/w Section 52 of the Police Act and in default of
payment of fine to undergo simple imprisonment for a further
period of 10 days and rigorous imprisonment for a period of 3
months for the offence punishable under Section 22 r/w Section 20
of the Sand Act. The sentence will run concurrently. The period of
detention, if any, undergone by him as an under trial prisoner is set
off.”
7. While assailing the conviction and sentence dated
24.07.2007, it is pointed out by the learned counsel for the accused that in
Ext.P13 discharge certificate dated 25.01.2005 as that of Mr.Stanley E.P
would suggest that the occurrence was the result of RTA (road traffic
accident) at 9.50 p.m on 29.11.2004. It is pointed out further that PW17
examined to prove Ext.P13 though supported the injuries, the occurrence is
nothing but a road traffic accident. Therefore, the allegation of the
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prosecution that the accused had intention to commit murder of Stanley is
unsustainable. It is argued further that the trial court believed the
interested testimony of the police officer alone without corroboration and
therefore the finding of the trial court is wrong. The impossibility to
identify the accused in the light available from the police jeep also was
highlighted to disbelieve the prosecution case. According to the learned
counsel for the accused, the trial court failed to appreciate the evidence
properly and therefore the conviction and sentence are liable to be
interfered.
8. Dispelling this argument it is pointed out by the learned
Public Prosecutor that even though in Ext.P13 it has been stated RTA as
the cause of accident, during chief examination of PW17, Ext.P13 was
marked. But no cross examination and nothing asked to PW17, who had
written `RTA’ as the cause of accident. Therefore, merely because in
Ext.P13 it is recorded RTA as the alleged cause of accident at 9.50 p.m on
29.11.2004, the same alone would not save the accused from the offences
proved to be committed by cogent and convincing evidence otherwise.
Therefore, the appeal is liable to be dismissed.
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9. Having addressed the rival arguments, the points raised
for consideration are:
(i) Whether the trial court went wrong in finding that the
accused committed offence under Section 307 of IPC?
(ii) Whether the trial court went wrong in finding that the
accused committed offence under Section 333 of IPC?
(iii) Whether the trial court went wrong in finding that the
accused committed offence under Section 341 of IPC?
(iv) Whether the trial court went wrong in finding that the
accused committed offence under Section 38 r/w Section 52 of the Kerala
Police Act?
(v) Whether the trial court went wrong in finding that the
accused committed offence under Section 22 r/w Section 20 of the Sand
Act?
(vi) Whether the order requires interference?
(vii) Order to be passed?
10. While addressing the rival submissions, re-appreciation
of evidence is necessary. PW1 examined in this case is one Balakrishnan
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Nair. He deposed that as on 29.11.2004, he was working as Probationer
Sub Inspector of Police in Aluva Police Station. He deposed further that
on 29.11.2004, as informed by the Deputy Superintendent of Police
regarding illegal transport of river sand in Thekkadam, Puthenvelikkara,
Manjali and Paravur, Sri Anilkumar, Sub Inspector of Police, Njarakkal,
Sri Muhammadkutti and Stanley police constables were deputed to duty at
8 p.m. When they reached the road towards Paravur, a mini lorry was
driven in over speed found to be moving towards Chanthappadam road.
They followed the lorry and after some time the lorry was stopped. Then
by using hydraulic technology the driver started to unload the river sand
found in the mini lorry. Jeep driver continuously made horn and PW1 and
others got down from the jeep and moved towards the lorry. PW1 reached
towards the driver and Stanley (PW2) moved towards the cleaner when the
driver attempted to move the lorry and uttered towards Stanley that if he did not
move himself from the front of the lorry, he would be killed by hitting the lorry.
Then Stanley moved towards the cleaner’s door and attempted to open the
door near the cleaner. Then the driver asked the cleaner to put him down
and the cleaner pushed Stanley down. Soon the driver took the lorry ahead
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and by this time the back left tyre of the lorry ran over the right thigh of
Stanley and thereby Stanley was taken to Don Bosco Hospital, North
Paravur and later to Medical Centre Hospital. He identified the driver,
who was at the door, and accordingly PW1, due to animosity arose out of
the sand grabbing, the accused done the same. He identified the number of
mini lorry as KL7 AT 1131 and also supported Ext.P1 report prepared by
the Sub Inspector of Police, Paravur. Though PW1 was thoroughly cross
examined, nothing extracted to disbelieve his version in the matter of
occurrence. PW2 examined in this case is Stanley who sustained injuries
in this occurrence when the mini lorry ran over his right thigh. He
also deposed the occurrence as deposed by PW1 and he deposed that the
driver took the lorry ahead and the back left tyre of the lorry ran over his
right thigh and later he was admitted to hospital and treated. During cross
examination of PW2, a question was asked as to whether the accused was
familiar to PW2 and it was answered by PW2 that he did not have any
prior familiarity. But his version is that he spoke to the accused standing
nearby and he thus could identify him easily. Regarding the familiarity
with the accused, the same question was asked to PW1 and he also stated
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that he had no familiarity with the accused prior to the occurrence. PW3
examined in this case is the Probationer Sub Inspector of Police, Njarakkal
Police Station, who accompanied PW1 and PW2. He also supported the
evidence given by PW1 and PW2 as to occurrence.
11. Ext.P2 is the mahazar prepared after identifying the
uniform worn by Stanley at the time of occurrence and the same was
supported by PW4, who was on squad duty of the Deputy Superintendent
of Police. PW5 turned hostile to the prosecution. PW6 supported the
occurrence stating that he helped to push the vehicle. Even though PW7
was examined to prove Ext.P3 scene mahazar prepared by the Circle
Inspector of Police, he stated that he did not sign in the mahazar. At the
same time, he gave evidence that he was at the place of occurrence and he
witnessed something written by the police and also measuring the place.
PW8 is another witness to Ext.P3 and he also stated that he did not sign
Ext.P3 mahazar, but he was present at the time of preparing the mahazar.
PW9, PW10, PW11 and PW12 turned hostile to the prosecution. PW13,
the owner of KL-07-AT-1131 mini lorry admitted that he was the
registered owner of the same and it was given on monthly rent. But he
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denied the fact that the accused driven the mini lorry at the time of
occurrence. But he admitted that he released the mini lorry by executing
Ext.P8 kaichit and he also signed in Ext.P9 mahazar pertaining to the
same. During cross examination PW13 stated that he had only hearsay
knowledge regarding the occurrence. Ext.P11 is the motor vehicle
inspection report proved through PW15 attached to Sub R.T.O, Paravur, as
per which no mechanical defect found to the mini lorry. Scene plan
Ext.P10 prepared by PW14, the then Village Officer, Paravur.
12. Coming to medical evidence, PW16 Dr.Roy Mathew, the
Orthopaedic Surgeon was examined to prove Ext.P12 wound certificate
pertaining to the injuries sustained to Stanley. As per the evidence of
PW16 and Ext.P12 wound certificate, following injuries were noted:
“A specified abrasion over the right gluteal region. Disburse
swelling over the right hip region. Tenderness over the right hip. Pain
and tenderness upper part of the thigh (right). Movement at right hip
are painful.”
13. According to PW16, the injury could be as alleged by
running over mini lorry through the leg and by hitting same on the body.
PW16 was not cross examined to shake his evidence. PW17 treated
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Stanley on 30.11.2004 and he supported issuance of Ext.P13 certificate
showing the following injuries, viz., (i) abrasion of right hand, (ii)
contusion on right hemipelvis and fractures of superior and inferior pubic
ramii right side. As already observed, no cross examination effected to
disbelieve the version of PW17 also regarding the injuries noted or with
regard to the cause of accident stated therein. PW18, the then Sub
Inspector of Police, Paravur registered FIR vide Crime No.695/2004 of
Paravur Police Station alleging commission of offences punishable under
Sections 341, 333, 307 r/w 34 of IPC as well as under Section 38 r/w 52 and
Section 22 r/w Section 20 of the Sand Act. PW19, the Sub Inspector of Police,
Njarakkal held the additional charge of the Circle Inspector of Police, Paravur
deposed about the recovery of KL-07-AT-1131 lorry in custody after
preparing mahazar. PW20 conducted part of the investigation. Ext.P16 is
the report showing the correct name and address of the accused and
Ext.P17 is the notice issued to the R.C owner to give the address of the
accused were marked. The further investigation in this case is carried out
by PW21 and he deposed about recording the statements of the witnesses and
filing of final report.
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14. As far as the ingredients to attract offence punishable
under Section 307 of IPC is concerned, the law is no more res integra. In
this connection it is relevant to refer Section 307 of IPC. The same reads
as under:
“307: Attempt to murder:– Whoever does any act with
such intention or knowledge, and under such circumstances that, if
he by that act caused death, he would be guilty of murder, shall be
punished with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine; and if urt is
caused to any person by such act, the offender shall be liable either
to imprisonment for life, or to such punishment as is herein before
mentioned.”
15. In the decision reported in [(2009) 4 SCC 26 : (2009) 2
SCC (Cri) 40 : AIR 2009 SC 1642], State of M.P v. Kashiram, the scope
of intention for attracting conviction under Section 307 IPC was elaborated
and it was held in paragraphs 12 and 13 as under:
“12….’13. It is sufficient to justify a conviction under
Section 307 if there is present an intent coupled with some overt act
in execution thereof. It is not essential that bodily injury capable of
causing death should have been inflicted. The section makes a
distinction between the act of the accused and its result, if any. The
Court has to see whether the act, irrespective of its result, was done
with the intention or knowledge and under circumstances mentioned
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in the section. Therefore, an accused charged under Section 307
IPC cannot be acquitted merely because the injuries inflicted on the
victim were in the nature of a simple hurt.
14. This position was highlighted in State of
Maharashtra v. Balram Bama Patil, [(1983) 2 SCC 28 : 1983 SCC
(Cri) 320], Girija Shankar v. State of U.P, [(2004) 3 SCC 793 :
2004 SCC (Cri) 863] and R.Prakash v. State of Karnataka, [(2004)
9 SCC 27 : 2004 SCC (Cri) 1408].
xxx xxx xxx xxx
16. Whether there was intention to kill or
knowledge that death will be caused is a question of fact and would
depend on the facts of a given case. The circumstances that the
injury inflicted by the accused was simple or minor will not by itself
rule out application of Section 307 IPC. The determinative question
is the intention or knowledge, as the case may be, and not the
nature of the injury.’
See State of M.P v. Saleem, [(2005) 5 SCC 554 : 2005
SCC (Cri) 1329], SCC pp. 559-60, paras 13-14 and 16.
13. `6. Undue sympathy to impose inadequate
sentence would do more harm to the justice system to undermine the
public confidence in the efficacy of law and society could not long
endure under such serious threats. It is, therefore, the duty of every
court to award proper sentence having regard to the nature of the
offence and the manner in which it was executed or committed, etc.
This position was illuminatingly stated by this Court in Sevaka
Perumal v. State of T.N, [(1991) 3 SCC 471 : 1991 SCC (Cri) 724].
(Saleem case [(2005) 5 SCC 554 : 2005 SCC (Cri) 1329], SCC
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p.558, para 6)”
16. In the decision reported in [(2004) 9 SCC 27 : 2004 SCC
(Cri) 1408], R.Prakash v. State of Karnataka, in para.9 the Apex Court
held that:
“9. It is sufficient to justify a conviction under Section
307 if there is present an intent coupled with some overt act in execution
thereof. It is not essential that bodily injury capable of causing death
should have been inflicted. Although the nature of injury actually caused
may often give considerable assistance in coming to a finding as to the
intention of the accused, such intention may also be deduced from other
circumstances, and may even, in some cases, be ascertained without any
reference at all to actual wounds. The Sections makes a distinction
between the act of the accused and its result, if any. The Court has to see
whether the act, irrespective of its result, was done with the intention or
knowledge and under circumstances mentioned in the Section.” (emphasis
supplied)
5.6.3. If the assailant acts with the intention or knowledge that
such action might cause death, and hurt is caused, then the provisions of
Section 307 IPC would be applicable. There is no requirement for the
injury to be on a “vital part” of the body, merely causing “hurt” is
sufficient to attract S. 307 IPC [State of M.P. v. Mohan, (2013) 14 SCC
116 : (2014) 4 SCC (Cri) 119].
5.6.4. This Court in Jage Ram v. State of Haryana reported in
[(2015) 11 SCC 366 : (2015) 4 SCC (Cri) 425], held that:(SCC p.370,
para.12).
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“12. For the purpose of conviction under Section 307 IPC,
prosecution has to establish (i) the intention to commit murder; and
(ii) the act done by the accused. The burden is on the prosecution
that the accused had attempted to commit the murder of the
prosecution witness. Whether the accused person intended to commit
murder of another person would depend upon the facts and
circumstances of each case. To justify a conviction under Section 307
IPC, it is not essential that fatal injury capable of causing death
should have been caused. Although the nature of injury actually
caused may be of assistance in coming to a finding as to the intention
of the accused, such intention may also be adduced from other
circumstances. The intention of the accused is to be gathered from
the circumstances like the nature of the weapon used, words used by
the accused at the time of the incident, motive of the accused, parts of
the body where the injury was caused and the nature of injury and
severity of the blows given, etc.”(emphasis supplied)
5.6.5. This Court in the recent decision of State of M.P. v.
Kanha reported in (2019) 3 SCC 605 held that:
“13. The above judgements of this Court lead us to the
conclusion that proof of grievous or life-threatening hurt is not a sine
qua non for the offence under Section 307 of the Penal Code. The
intention of the accused can be ascertained from the actual injury, if
any, as well as from surrounding circumstances. Among other things,
the nature of the weapon used and the severity of the blows inflicted
can be considered to infer intent.” (emphasis supplied)
5.7. In view of the above mentioned findings, it is
evident that the ingredients of Section 307 have been made out, as the
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intention of the Accused /Respondent No. 1 can be ascertained clearly
from his conduct, and the circumstances surrounding the offence.”
17. In the decision reported in [(2021) 20 SCC 24], Surinder
Singh v. State (Union Territory of Chandigarh), the Apex Court
considered a question as to whether the guilt of the appellant under Section
307 IPC has been proved beyond reasonable doubt? and held in paragraphs
19 to 25 as under:
“19. Before we advert to the factual matrix or gauge the
trustworthiness of the witnesses, it will be beneficial to brace ourselves of
the case law qua the essential conditions, requisite for bringing home a
conviction under Section 307 IPC. In State of Madhya Pradesh vs.
Saleem reported in (2009) 4 SCC 26, this Court, while re-appreciating the
true import of Section 307 IPC held as follows:
“12. To justify a conviction under this section, it is not
essential that bodily injury capable of causing death should have
been inflicted. Although the nature of injury actually caused may
often give considerable assistance in coming to a finding as to the
intention of the accused, such intention may also be deduced from
other circumstances, and may even, in some cases, be
ascertained without any reference at all to actual wounds. The
section makes a distinction between an act of the accused and its
result, if any. Such an act may not be attended by any result so
far as the person assaulted is concerned, but still there may be
cases in which the culprit would be liable under this section. It is
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not necessary that the injury actually caused to the victim of the
assault should be sufficient under ordinary circumstances to
cause the death of the person assaulted. What the court has to see
is whether the act, irrespective of its result, was done with the
intention or knowledge and under circumstances mentioned in
the section. An attempt in order to be criminal need not be the
penultimate act. It is sufficient in law, if there is present an intent
coupled with some overt act in execution thereof.
13. It is sufficient to justify a
conviction under Section 307 if there is present an intent coupled
with some overt act in execution thereof. It is not essential that
bodily injury capable of causing death should have been inflicted.
The section makes a distinction between the act of the accused
and its result, if any. The court has to see whether the act,
irrespective of its result, was done with the intention or
knowledge and under circumstances mentioned in the section.
Therefore, an accused charged under Section 307 IPC cannot be
acquitted merely because the injuries inflicted on the victim were
in the nature of a simple hurt.” (emphasis supplied)
20. These very ingredients have been accentuated in some of the
later decisions, including in State of M.P. vs. Kashiram reported in
[(2009) 4 SCC 26 : (2009) 2 SCC (Cri) 40], Jage Ram v. State of Haryana
reported in [(2015) 11 SCC 366 : (2015) 4 SCC (Cri) 425] and State of
M.P. v. Kanha reported in [(2019) 3 SCC 605 : (2019) 2 SCC (Cri) 247].
21. It is by now a lucid dictum that for the purpose of
constituting an offence under Section 307 IPC, there are two ingredients
that a Court must consider, first, whether there was any intention or
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knowledge on the part of accused to cause death of the victim, and, second,
such intent or knowledge was followed by some overt actus rea in
execution thereof, irrespective of the consequential result as to whether or
not any injury is inflicted upon the victim. The courts may deduce such
intent from the conduct of the accused and surrounding circumstances of
the offence, including the nature of weapon used or the nature of injury, if
any. The manner in which occurrence took place may enlighten more than
the prudential escape of a victim. It is thus not necessary that a victim shall
have to suffer an injury dangerous to his life, for attracting Section 307
IPC.
22. It would also be fruitful at this stage, to appraise
whether the requirement of “motive” is indispensable for proving the
charge of attempt to murder under Section 307 IPC.
23. It is significant to note that “motive” is distinct from
“object and means” which innervates or provokes an action. Unlike
“intention”, “motive” is not the yardstick of a crime. A lawful act with an
ill motive would not constitute an offence but it may not be true when an
unlawful act is committed with best of the motive. Unearthing “motive” is
akin to an exercise of manual brain-mapping. At times, it becomes
herculean task to ascertain the traces of a “motive”.
24. This Court has time and again ruled: (Bipin Kumar Mondal
v. State of W.B. reported in [(2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150],
SCC p.97, para.23)
“23. …that in case the prosecution is not able to
discover an impelling motive, that could not reflect upon the
credibility of a witness proved to be a reliable eyewitness.
Evidence as to motive would, no doubt, go a long way in
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cases wholly dependent on circumstantial evidence. Such
evidence would form one of the links in the chain of
circumstantial evidence in such a case. But that would not be
so in cases where there are eyewitnesses of credibility,
though even in such cases if a motive is properly proved,
such proof would strengthen the prosecution case and fortify
the court in its ultimate conclusion. But that does not mean
that if motive is not established, the evidence of an eyewitness
is rendered untrustworthy.” [See:Shivaji Genu Mohite v.
State of Maharashtra reported in [(1973) 3 SCC 219 : 1973
SCC (Cri) 214] and Bipin Kumar Mondal vs. State of West
Bengal reported in [(2010) 12 SCC 91 : (2011) 2 SCC (Cri)
150]
25. We are thus of the considered opinion that whilst
motive is infallibly a crucial factor, and is a substantial aid for evincing
the commission of an offence but the absence thereof is, however, not such
a quintessential component which can be construed as fatal to the case of
the prosecution, especially when all other factors point towards the guilt
of the accused and testaments of eyewitnesses to the occurrence of a
malfeasance are on record.”
18. Thus the legal position is well settled that for the purpose
of constituting an offence under Section 307 IPC, there are two ingredients
that a Court must consider: first, whether there was any intention or
knowledge on the part of accused to cause death of the victim; and,
second, such intent or knowledge was followed by some overt actus reus
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in execution thereof, irrespective of the consequential result as to whether
or not any injury is inflicted upon the victim. The courts may deduce such
intent from the conduct of the accused and surrounding circumstances of
the offence, including the nature of weapon used or the nature of injury, if
any. The manner in which occurrence took place may enlighten more than
the prudential escape of a victim. It is thus not necessary that a victim shall
have to suffer an injury dangerous to his life, for attracting Section 307
IPC. It is sufficient to justify a conviction under Section 307 if there is
present an intent coupled with some overt act in execution thereof. It is
not essential that bodily injury capable of causing death should have been
inflicted. The section makes a distinction between the act of the accused
and its result, if any. The court has to see whether the act, irrespective of
its result, was done with the intention or knowledge and under
circumstances mentioned in the section. Therefore, an accused charged
under Section 307 IPC cannot be acquitted merely because the injuries
inflicted on the victim were in the nature of a simple hurt. To put it
otherwise, if a person commits an act with intention or knowledge that
under such circumstance if death has been caused the offence would
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amount to murder or the act itself is of such nature as would cause death in
the usual course of its nature, then the person said to have committed the
offence punishable under Section 307 of IPC, for which, the victim shall
not suffer any injury/injuries fatal to him.
19. Coming to Section 333 of the IPC, causing grievous hurt
to any person being a public servant in the discharge of his duty as such
public servant, or with intent to prevent or deter that person or any other
public servant from discharging his duty as such public servant, or in
consequence of anything done or attempted to be done by that person in
the lawful discharge of his duty as such public servant, shall be punished
with imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine. In the instant case, as already
discussed, grievous hurt has been caused to PW2, Stanley, by the
voluntary act of the accused and, therefore, offence under Section 333 of
IPC also is established by the prosecution with aid of cogent evidence.
Similarly, Section 341 of IPC provides punishment for wrongful restraint
defined under Section 339 of IPC and it has been provided that an act of
voluntary obstruction to any person so as to prevent that person from
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proceeding in any direction in which that person has a right to proceed, is
said to be wrongfully restraint that person.
20. Section 38 of the Kerala Police Act empowers a police
officer to lawfully interfere to prevent and stop the best of his ability any
offence going on or about to take place in his presence or vicinity. Section
52(1) of the Kerala Police Act provides that all service providers who
render any service shall, on demand by a police officer in the course of
discharge of official duties, furnish the details and records of any particular
service or different services provided by such service providers, which are
connected with any Police enquiry being conducted in accordance with
law. Similarly, Section 52(2) provides that such records, description and
information shall be furnished, as expeditiously as possible, within the
reasonable time limit fixed by the requisitioning police officer concerned.
21. Section 20 of the Sand Act provides for penalty for
contravention of the Sand Act. It has been provided that whoever
contravenes any of the provisions of this Act or rules made thereunder
shall, on conviction be punished with imprisonment for a term of which
may extend to two years or with fine which may extend to twenty-five
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Crl.Appeal No.1383/2007 : 23 :
thousand rupees or with both and in case of continuing contravention with
an additional fine which may extend to one thousand rupees for every day
during which such contravention continues. Section 22 provides for
punishment under other laws not barred. This Section stipulates that
nothing in this Act shall prevent any person from being prosecuted under
any other law for the time being in force for any act or omission made
punishable under this Act.
22. On scrutiny of the evidence discussed herein above, it
could be found that on 29.11.2004, PW1, PW2, PW3 along with other
police personnel, who were on duty as posted by the Deputy
Superintendent of Police to find illegal transit of river sand, when found at
8 p.m on the same day that the mini lorry driven by the accused moved
towards Chanthappadam road in over speed and on following the lorry it
was found that after stopping the lorry the driver attempted to unload the
river sand in the lorry by using hydraulic technology. Thereafter, mini
lorry was intercepted by the police officials, including PW1 to PW3 and
when PW2 was in front of the lorry, the accused uttered him to move
himself, otherwise, he would be killed by running the lorry over him.
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Crl.Appeal No.1383/2007 : 24 :
When PW2 moved towards the cleaner’s door, he was pushed down by the
cleaner, as directed by the accused and later, the accused took lorry ahead
and the back tyre of the lorry ran over the right thigh of PW2, Stanley, and
he sustained very serious injuries, as extracted herein above. Thus it could
be gathered that when the police officials were engaged in their official
duty to restrain illegal transport of river sand, their duty was obstructed
and they were wrongfully restrained and the accused restrained, obstructed
and ran over the mini lorry through the right thigh of PW2 Stanley with
intention to kill him. Thus the ingredients to attract the offences under
Sections 341, 333 and 307 of the IPC as well as under Section 38 r/w
Section 52 of the Kerala Police Act and Section 22 r/w Section 20 of the
Sand Act are established by the prosecution beyond reasonable doubt. As
far as the identity of the accused at the instance of PW2 is concerned,
though he had no previous familiarity with the accused, his evidence is
that he had talked to the accused for a while and thus he could identify the
accused. Accordingly, PW2 identified the accused. Thus even though it is
argued by the learned counsel for the accused that identity of the accused
from the light available from the police jeep is insufficient, the said
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Crl.Appeal No.1383/2007 : 25 :
contention is of no avail to the accused, as PW2, a person who had
occasion to talk with the accused for a while identified the accused. PW2
even though had no previous familiarity with him, he had the opportunity
to imprint the face and gestures of the accused into his mind during the
course of their talking; when identified the accused at the dock, the said
identification should not be disbelieved. The evidence of such an injured
witness is sufficient to prove the identity of the accused. That apart, there
is no reason to disbelieve the prosecution case that PW2 identified the
accused from the light available from the jeep.
23. Regarding the contention raised by the learned counsel
for the accused that no independent witness supported the prosecution
case, it is discernible that the independent witness cited and examined by
the prosecution turned hostile. But it is the well settled law that hostility
of independent witnesses by itself would not make the prosecution case
unbelievable, where the injured witness who carries the trauma as the signs
of the occurrence spoke in support of the prosecution case. Thus this
contention also must fail. In view of the discussion herein above, the
contention raised by the appellant that the trial court failed to appreciate
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Crl.Appeal No.1383/2007 : 26 :
the evidence also would not yield. In such a case, the finding of the trial
court that the accused committed the above offences is only to be justified.
Therefore, I am inclined to confirm the conviction imposed by the trial
court.
24. Regarding sentence also, having considered the
seriousness and gravity of the offences committed by the accused, the
sentence also found to be justifiable. Hence no interference in the
sentence also is warranted. Thus the sentence also is confirmed.
25. In the result, this appeal fails and is accordingly
dismissed. The bail bond of the accused stands cancelled and he is
directed to surrender before the trial court forthwith to undergo the
sentence, failing which the trial court is directed to execute the sentence
without fail.
Registry is directed to forward a copy of this order to the
jurisdictional court for compliance and further steps.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
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