BINU AND ANOTHER vs STATE OF KERALA

Court
Kerala High Court

​ ​ ​ ​ ​ ​ ​ CNR : KLHC010142962011
​ ​ ​ ​ ​ ​ ​ ​ ​
2026:KER:85913


IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
TUESDAY, THE 10 DAY OF NOVEMBER 2026 / 19TH KARTHIKA, 1948
CRL.A NO. 409 OF 2011
AGAINST THE JUDGMENT DATED 15.12.2010 IN SC NO.213 OF
2007 OF ADDITIONAL SESSIONS COURT-I, KOLLAM
APPELLANTS/ACCUSED 1 & 2:

1 BINU, S/O.CHACKO, KAYANNU VEEDU, OLIYODU COLONY,
VADKODU MURI,THALAVUR VILLAGE.
​
2 SOMAN, S/O.CHACKO, KAYANNU VEEDU
OLIYODU COLONY, VADKODU MURI, THALAVUR VILLAGE.

​
BY ADVS.
​
SRI.TOM JOSE
SMT.GEETHA JOB(OZHUKAYIL)

RESPONDENT/COMPLAINANT:

​
STATE OF KERALA
PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.

OTHER PRESENT:

ADV K C MOHAMED RAHID, STATE BRIEF

PP, M A SHIHAB

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
28.10.2026, THE COURT ON 10.11.2026 DELIVERED THE FOLLOWING:


Crl. Appeal No.409/2011 ​ ​ ​ 2

A. BADHARUDEEN, J.
—--------------------------------------------
Crl. Appeal No. 409 of 2011
—---------------------------------------------------
Dated this the 10th day of November, 2026
​ ​ ​ ​ ​ ​ ​ ‘CR’
JUDGMENT

​ Accused Nos.1 and 2 in S.C.No.213/2007 on the files of the
Additional Sessions Court-I, Kollam have filed this appeal under
Section 374(2) of the Code of Criminal Procedure, challenging the
judgment impugned dated 15.12.2010, delivered in the said case.
​ 2.​ In this case, the counsel who filed the appeal for and
on behalf of the appellants was not ready to argue the matter and
accordingly, this Court as per order dated 29.05.2024 appointed
Sri. K.C. Mohamed Rashid as Amicus Curiae/State Brief to argue
the matter. After the appointment of the Amicus Curiae on
24.06.2024, counsel for the appellants again appeared and sought
time till 25.06.2024 to argue the matter on merits. Later, again
this case got adjourned to 15.07.2025 and 18.08.2025. Accordingly,
notice was issued to the appellants and it was reported that they
had shifted their residence and their whereabouts could not be
found. Thereafter, the counsel for the appellants did not turn up
to argue the matter. Accordingly, this Court directed the

Crl. Appeal No.409/2011 ​ ​ ​ 3

appearance of Adv. K.C. Mohamed Rashid, State Brief to appear
and argue the matter on 19.08.2026. Thereafter, on 24.09.2026
again, Sri. K.C Mohamed Rashid was appointed as State Brief to
argue the matter on merits.
​ 3.​ Heard the learned State Brief and learned Public
Prosecutor on 28.10.2026 in detail and perused the judgment
under challenge.
​ 4.​ Here the prosecution alleges commission of offences
punishable under Sections 324, 341, 307 r/w 34 of the Indian
Penal Code (hereinafter referred as the ‘IPC’) by accused Nos.1
and 2. The prosecution allegation is that, accused Nos.1 and 2
with an intention to do away with PW1, wrongfully restrained
him at 7.30 p.m on 29.01.2006 on the bund of the paddy field
towards his house when he was returning to his house at Oliyod
colony and assaulted him with intention to do away with him.
Even though he sustained injuries, he survived.
​ 5.​ The learned Sessions Judge framed charge for the said
offences and recorded the evidence. PWs.1 to 14 were examined,
Exts.P1 to P14 and MOs.I to VI were marked on the side of
prosecution. On the side of defence, DW1 was examined and
Exts.D1 to D5 were tendered in evidence. Thereafter, learned

Crl. Appeal No.409/2011 ​ ​ ​ 4

Sessions Judge considered the matter on merits after hearing
both sides and found that the appellants/accused 1 and 2 had
committed offences punishable under Sections 341 and 307 r/w
34 of IPC and they were convicted for the said offences and
sentenced as under:
“Accused Nos.1 and 2 are sentenced to undergo simple
imprisonment for one month each for offence u/s.341 IPC and
two years each for offence u/s.307 r/w.34 IPC. They are also
sentenced to pay a fine of Rs.10,000/-(Rupees ten thousand)
each for offence u/s.307 IPC and in default simple
imprisonment for six months.”

​ 6. Learned State Brief raised a legal question in the instant
case while assailing the verdict. According to him, as deposed by
PW12, the Investigating Officer, and as discernible from the
evidence of DW1, supported by Exts. D4 and D5, the wound
certificates of accused Nos. 1 and 2, the accused persons had
sustained injuries, and the prosecution failed to explain how they
had sustained the above injuries. The learned counsel has placed
reliance on the decision in Parshuram v. State of M.P (2023 KHC
OnLine 6973) to contend that when the witnesses are interested
witnesses in as much as they are close relatives of the injured,
non-explanation of the injuries sustained by the accused persons to be
fatal to the prosecution. In paragraph no.20 of the above decision, the

Crl. Appeal No.409/2011 ​ ​ ​ 5

Apex Court held as under:

“20. We do not find the said observation of the trial court
correct. The injuries sustained by Ramrup @ Roopa is by a
sharp weapon. It will be trite to refer to the following
observations of this Court in the case of Lakshmi Singh and
Ors. v. State of Bihar (1976) 4 SCC 394:
12 It seems to us that in a murder case, the non-explanation of
the injuries sustained by the Accused at about the time of the
occurrence or in the course of altercation is a very important
circumstance from which the court can draw the following
inferences:
“(1) that the prosecution has suppressed the genesis and the
origin of the occurrence and has thus not presented the true
version;
(2) that the witnesses who have denied the presence of the
injuries on the person of the Accused are lying on a most
material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the
injuries on the person of the Accused it is rendered probable
so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the
injuries on the person of the Accused assumes much greater
importance where the evidence consists of interested or
inimical witnesses or where the defence gives a version which
competes in probability with that of the prosecution one. In
the instant case, when it is held, as it must be, that the
Appellant Dasrath Singh received serious injuries which have
not been explained by the prosecution, then it will be difficult
for the court to rely on the evidence of PWs 1 to 4 and 6, more

Crl. Appeal No.409/2011 ​ ​ ​ 6

particularly, when some of these witnesses have lied by
stating that they did not see any injuries on the person of the
Accused. Thus neither the Sessions Judge nor the High Court
appears to have given due consideration to this important
lacuna or infirmity appearing in the prosecution case. We
must hasten to add that as held by this Court in State of
Gujarat v. Bai Fatima [(1975) 2 SCC 7: 1975 SCC (Cri) 384] there
may be cases where the non-explanation of the injuries by the
prosecution may not affect the prosecution case. This
principle would obviously apply to cases where the injuries
sustained by the Accused are minor and superficial or where
the evidence is so clear and cogent, so independent and
disinterested, so probable, consistent and creditworthy, that
it far outweighs the effect of the omission on the part of the
prosecution to explain the injuries. The present, however, is
certainly not such a case, and the High Court was, therefore,
in error in brushing aside this serious infirmity in the
prosecution case on unconvincing premises.”

​ 7.​ It is pointed out by the learned State Brief that the
evidence of PW1 supported by the evidence of PW2 and PW3
with the aid of the evidence given by PW5 and Ext.P7 wound
certificate as that of PW1, commission of offences under sections
341 and 307 of IPC could not be found since the said evidence is
not fully free from doubts. On these grounds, he pressed for
interference in the impugned verdict to record acquittal of the
appellants giving benefit of doubt to the appellants.

Crl. Appeal No.409/2011 ​ ​ ​ 7


​ 8.​ Strongly refuting these contentions, learned Public
Prosecutor submitted that, in the instant case, going through the
prosecution allegation herein with that of the prosecution
allegation in Ext.D2 charge in C.C.No.55/2005 proved through
PW12, Investigating Officer, even though the time of occurrence
is stated as 7.30 p.m. in both crimes, it is discernible that the
crime in C.C.No.55/2005 had occurred after the occurrence of the
present crime and therefore, accused Nos.1 and 2 had sustained
injuries in the said occurrence and in such view of the matter, it
could not be held that the prosecution failed to explain the
injuries sustained by the accused persons herein as discernible
from the evidence of DW1 and from Exts.D4 and D5. Thus, he
pressed for confirmation of the impugned verdict.
​ 9.​ Now the question arises for consideration are:
(i) Whether the Sessions Court is right in holding that the
appellants/accused Nos.1 and 2 committed offence punishable
under Section 341 IPC?
​ ( ii)​ Whether the Sessions Court justified in holding that the
appellants/accused Nos.1 and 2 committed the offence under
Section 307 r/w 34 of IPC?
​ (iii) Whether the verdict would require interference?
(iv) The order to be passed?

Crl. Appeal No.409/2011 ​ ​ ​ 8



Point Nos.(i) to (iv)
10.​ While answering these points, it is relevant to refer
the evidence given by PW9, the doctor who had examined PW1
and issued Ext.P7 wound certificate. PW9 deposed about the
treatment given to PW1, when he was taken to the hospital, soon
after the occurrence and according to him, he had noted the
following injuries.
“(1)Injury about 10x3x1 c.m at left infra scapular area.
(2)Injury about 7x2x1 c.m on the supra scapular area.
(3)Injury about 3x2x1 c.m, 5 c.m below the nape of neck.
(4)Skin deep injury about 7x5 c.m on the left shoulder.
(5)Scalp injury about 10x3x2 c.m, 5 c.m about the left ear.
(6)Injury of about 10x2x1c.m starting from hair line about 2
c.m lateral to the midline extending to the midline of the
head.
The injuries are possible with MO1 weapon. Injuries are on the
vital part of the body. There was heavy bleeding from the
injury.”

​ 11.​ This is a case, wherein, as borne out from Ext.P7
wound certificate and the evidence of PW9, PW1 sustained
multiple lengthy injuries on the head, scalp and shoulder and
according to PW9, the injuries could be caused by MO1 weapon.

Crl. Appeal No.409/2011 ​ ​ ​ 9

​
12.​ Going through the evidence to prove the occurrence,
the prosecution relied on the evidence of PW1, the victim, and
PW2 and PW3 who witnessed the occurrence supported by the
evidence of PW6, uncle of the victim who reached the place of
occurrence soon after the occurrence. PW1 is the victim in the
case. He deposed that he is residing at Vadacod and he is residing
along with his mother. The incident in the case occurred at 7.30
p.m on 29.1.2006, while he was returning to his house from
Vadacod School through the bund of the paddy field on the
western side of the school. When he reached in the bund through
the property of one Mannarath Joy, somebody shouted that they
would kill him. He turned back and flashed the torch and found
accused nos.1 and 2 there. The second accused, Soman caught
hold of him and pushed him into the paddy field. The first
accused cut him with the chopper on the neck, back and on his
left ear and also caused cut injury on the middle of his head. He
cried aloud. Soon some persons came through the paddy field
flashing torch. Then the accused attempted to cut on his neck
with the chopper, he prevented the same with his right hand and
thereby he had sustained injuries to his fingers. When the

Crl. Appeal No.409/2011 ​ ​ ​ 10

neighbours came there, the accused abandoned the chopper and
escaped through the rubber estate. He was taken to the hospital.
He had given Ext.P1 statement to the police. According to him,
his brother Saju had married the sister of the accused. Out of that
enmity, the accused attacked him. On 20.8.2004, the accused had
attempted to murder him and there was a case before the
Kottarakkara Court in the said occurrence. He identified MO1
chopper before the court. MO2 chappal, MO3 specs, MO4 torch,
MO5 lunki and MO6 shirt were marked through him. There was
one rupee currency note in his pocket and it was marked as
Ext.P2. There was a photo identity card which was marked as
Ext.P3. PW1 was cross examined at length to shake his version.

13. ​ During cross-examination, he deposed that Vadacod
school is on the western side of Kottarakkara-Pathanapuram
road. The paddy field is further to the west of the School. One
can enter into the paddy field from the southern side of the
school going to the colony. That road is a cartable road having
street light. That road leads to the colony where he is residing.
On both sides of the bund of the paddy field there was tapioca
and plantain cultivation. From Alikkuzhi, one can go to the

Crl. Appeal No.409/2011 ​ ​ ​ 11

colony without using the bund. Most of the inmates of the colony
are CPI workers and his friends. CWs 2 and 6 are his relatives. The
accused inflicted several cut Injuries. He was pushed down into
the water channel. At that time, he lost possession of his torch.
People came there hearing his cry. Before the neighbours came
there, the accused had escaped. He denied the suggestion that he
deposed falsehood before court. His brother married the sister of
the accused in 1999. The father of the accused met with an
unnatural death and police had questioned them with respect to
that incident. His brother Baiju is in jail now. He is getting aid
from the government as a blind person. He sustained injuries to
his face. He denied the suggestion that at 7.30 p.m he along with
party workers attacked the house of the accused and caused hurt
to the accused.

14. ​ PW2 deposed before court that at 7.30 p.m
on 29.1.2006, he was returning to his house from
Alikkuzhi junction, and while he was walking through
the bund, they saw a man coming in the opposite
direction flashing a torch light. Suddenly, they heard
a hue and a cry. He went to the place of the incident

Crl. Appeal No.409/2011 ​ ​ ​ 12

and saw that the second accused had caught hold of PW1 and
pushed him down. The first accused inflicted cut injuries to
PW1 with a chopper. He shouted for help. At that time accused
nos.1 and 2 ran away. They took the injured to the hospital. He
identified MO1 chopper and other material objects. During
cross-examination, he deposed that he is a sympathizer of CPI
party. He is a daily labourer. On that day they had worked on
the eastern side of the Vadakod school. Alikkuzhi is 4½ K.m
west from his house. They came through the panchayat road
and then entered into the paddy field. From Alikkuzhi, one can
enter into the colony from the bund of the paddy field. They
were coming through the bund of the paddy field. At that time
they saw the incident. The accused inflicted injuries to PW1
after pushing down into the ground. They did not go near PW1
and the accused. They saw the incident in the light of the
torch. They saw PW1 in a pool of blood and took him to the
hospital. When it was suggested by the defacto complainant
that he deposed falsehood before court, he emphatically
denied the same.
15. ​ Supporting the version of PW1 and PW2, PW3 also
given evidence. According to him, at 7 p.m on 29.1.2006, while he

Crl. Appeal No.409/2011 ​ ​ ​ 13

was going to his house from Vayanasala mukku, he went through
the paddy field and at that time he saw accused Nos.1 and 2 on
the bund of the paddy field. The accused asked him whether he
saw PW1 on the way. After some time, he came to know that PW1
had sustained injuries. They took PW1 to the hospital. During
cross-examination, he deposed that he is also a CPI worker. Later
he saw PW1 with injuries. He denied the suggestion that what he
deposed before court was falsehood .
16.​ PW4, the father of PW3 who reached the place of
occurrence, deposed that at 7.30p.m. on 29.01.2006, he heard the
hue and cry and he rushed to the place of occurrence. Then he
witnessed that the first and second accused entering into the
rubber estate from the paddy field and also he saw PW1 with
injuries. It was through him Ext.P4 scene mahazar was tendered
in evidence.
17.​ Ext.P5 is the site plan tendered in
evidence through PW5, the then Village Officer. It was
PW6, who is the uncle of PW1, given evidence that
he had taken PW1 in an autorikshaw to the hospital
and also he had handed over MO5 and MO6, lungi and
shirt worn by PW1 at the time of occurrence to the police.

Crl. Appeal No.409/2011 ​ ​ ​ 14

Ext.P6 is the mahazar prepared for recovery of MO5 and MO6
signed by PW7.
18.​ Apart from these, PW8, Blacksmith who manufactured
MO1 and handed over the same to the accused also supported
the prosecution evidence/case.
19.​ It is true that the contention raised by the learned
Sessions Judge regarding the non-explanation of the injuries
sustained by accused nos.1 and 2 and also the contention raised
before the trial court that the evidence of PWs.1 to 4 could not be
believed was addressed by the learned Sessions Judge. In this
connection, learned Sessions Judge observed as under:
“Even as per the allegation of the defence the incident
occurred in the house of the accused when PW1
and his henchmen tried to destroy the house of
the accused. So, it cannot be stated that the
injury sustained by the accused as per Exts.D4
and D5 were caused in the same transaction.
Ext.D2 is the copy of the final report filed
in crime No.52/2006 of Kunnikkodu police
station where the accused in this case was stated to
sustain injuries. As per Ext.D2, the accused in the case are
Simon, Sundharan, Johnson and Balan. PW1 was not an
accused in that case. Ext.D3 is the copy of the mahazar in that
case. It shows that the place of incident is the house of the
accused. So, it, is clear that the accused sustained injuries not
in the same transaction and for that reason it cannot be

Crl. Appeal No.409/2011 ​ ​ ​ 15

stated that the prosecution case witnesses suppressed
material facts.”


​ 20.​ Thus, in this case, as per Exts.D4 and D5, tendered in
evidence through DW1, accused nos.1 and 2 sustained injuries
which led to the registration of another crime covered by Ext.D2
(C.C.No.55/2005). It is relevant to note that, in the said case, for
want of evidence, the accused persons therein were acquitted
and PW1 herein is not at all an accused in C.C.No.55/2005. Even
though the time of occurrence in both the crimes is stated as
7.30 p.m, in fact going through the allegations in C.C.No.55/2005,
the same is an occurrence, after this occurrence as per the
allegation of prosecution though the time therein is wrongly
stated as 7.30 p.m. in Ext.D2 also.

21.​ When evaluating the factual situation in this way,
what could be found is that accused nos.1 and 2 sustained
injuries in the second occurrence where PW1, the victim, in this
case is not at all an accused though the occurrence is after the
present occurrence. When there were two occurrences, one after
another, in such situation, the likelihood of sustaining injuries in
the second occurrence by accused nos.1 and 2 can be discernible

Crl. Appeal No.409/2011 ​ ​ ​ 16

from the evidence tendered, there is no reason to hold that the
prosecution failed to examine how injuries sustained to accused
nos.1 and 2. Therefore, the view taken by the learned Sessions
Judge in this regard is only to be sustained and this contention
must fail.
22.​ Coming back, in the instant case, going through the
evidence given by PW1, the injured witness, who sustained
injuries as spoken to by PW9, the doctor who had issued Ext.P7
wound certificate after examining PW1 soon after the
occurrence, it could be gathered that the appellants herein
attacked PW1 to do away him. Even though the appellants did
not succeed in committing culpable homicide, they caused
multiple injuries as discernible from the evidence of PW9 and
Ext.P7 certificate as extracted hereinabove.
23.​ It could be seen further that the evidence of PW1 as to
causing of injuries to him by the appellants with intention to do
away him because of previous animosity, is proved by the
prosecution, supported by medical evidence as well, PW2 who
was there at the place of occurrence as a chance witness also
deposed about the occurrence. In addition to the evidence of
PW2, PW3, PW4, PW5 and PW6 also supported the prosecution

Crl. Appeal No.409/2011 ​ ​ ​ 17

case. During cross-examination of these crucial witnesses,
nothing extracted to shake their versions in any manner.
24.​ It is pertinent to note that supporting the above
evidence, PW8, Blacksmith who manufactured MO1 and handed
over the same to the accused given evidence in their regard,
which would show that the appellants/accused persons have
made preparations to commit murder of PW1, even by obtaining
a newly manufactured weapon, suited for the same. Thus the
intention to do away PW1 is to be gathered from the evidence of
PW8. Thus, the evidence available would go to show that the
prosecution succeeded in proving that appellants/accused 1 and
2 have committed offences punishable under Sections 341 and
307 r/w 34 of the IPC. Therefore, the contention is liable to be
confirmed.
25.​ Coming to the sentence, the sentence imposed is very
reasonable as the maximum sentence imposed for the offence
punishable under Section 307 IPC is only two years. In such view
of the matter, the sentence also is liable to be confirmed.
In the result, the appeal fails and is dismissed by
confirming the conviction and sentence imposed by the Sessions
Court. Consequently, the order suspending sentence and

Crl. Appeal No.409/2011 ​ ​ ​ 18

granting bail to the appellants/accused Nos.1 and 2 stands
cancelled and their bail bonds also stand cancelled. The
appellants/accused Nos.1 and 2 are directed to surrender before
the Sessions Court to undergo the sentence, forthwith, failing
which, the Sessions Court is directed to execute the sentence,
without fail.
​ Registry is directed to forward a copy of this judgment to
the Sessions Court, for information and compliance.

Sd/-

A. BADHARUDEEN
JUDGE
Sbna/