MOHANAN vs STATE OF KERALA
- Court
- Kerala High Court
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
RD
TUESDAY, THE 3 DAY OF NOVEMBER 2026 / 12TH KARTHIKA, 1948
CRL.A NO. 451 OF 2011
AGAINST THE JUDGMENT DATED 28.02.2011 IN SC NO.1261 OF 2006
OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-I, KOLLAM
APPELLANT/ACCUSED:
MOHANAN, S/O. GANGADHARAN, PANAKKAL VEEDU, NEAR CHETHADI
SCHOOL, CHETHADI MURI, MELILA VILLAGE,, KOLLAM DISTRICT.
BY ADV SHRI.B.MOHANLAL
RESPONDENT/COMPLAINANT:
STATE OF KERALA, INSPECTOR OF POLICE, KUNNICODE POLICE
STATION, KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI. M.A SHIHAB, PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.10.2026, THE COURT ON 03.11.2026 DELIVERED THE
FOLLOWING:
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A. BADHARUDEEN, J.
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Crl. Appeal No.451 of 2011
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Dated this the 3rd day of November, 2026
‘CR’
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.
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
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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,
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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
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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 record acquittal. Therefore, he pressed for
confirmation of the verdict impugned.
9. Adverting to the rival contentions, the points arise for
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consideration are:
(i) Whether the Sessions Court is right in holding that the
appellant/accused committed offence punishable under Section
324 of IPC?
( ii) Whether the Sessions Court erred in finding that the
appellant/accused committed the offence under Section 308 of
IPC ?
(iii) Whether the verdict would require interference?
(iv) The order to be passed?
Point Nos.(i) to (iv)
10. The crucial witness in the instant case is PW2,
‘Lydhiyamma @ Mariyamma Abraham’, who suffered injury in this
occurrence. She deposed that her name, as recorded in the
documents is Mariamma Abraham, and that she also known by the
name ‘Ludhiyamma’. Thus, she told the doctor, when she was
taken to the hospital that her name as ‘Ludhiyamma’. According
to her, the occurrence was on 02.08.2005 and the accused herein is
Panakkal Veedu Mohanan and he is her neighbour. She identified
him by pointing him at the dock. She deposed that the
occurrence was on the courtyard of the house of the accused. She
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testified that the husband of her father’s sister’s daughter run a
shop owned by the accused and the period of rent was upto
14.08.2005. Before that, the accused beat her husband’s uncle
demanding vacation of the rented shop. Knowing this, her son,
Subinraj, intervened and at this juncture, the accused beat
Subinraj also. During this time, she was at her hotel by name
‘Jayaraj Hotel’ at Chengamanad and she reached in front of the
house of the accused to question the same. When she reached the
house, the accused approached her by uttering that he would give
what could be necessary for her and beat on the back of her head
with a wooden stick. He again beat on the head and thereby
injury was caused on her head. He beat her three times and she
evaded the third one. Otherwise, death could have happened.
She deposed about her hospitalization at Taluk Hospital,
Kottarakkara and treatment thereof. She deposed that she had
given Ext.P2 FIS in this regard. Regarding the stick used by the
accused to beat her, she stated that the accused ran away with the
stick. She was cross-examined to shake her version. During her
cross-examination, she clarified her versions in the chief
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examination without any ambiguity. Further, she deposed that
she did not produce her saree or blouse to the police. During
cross-examination, she stated that the stick used to beat her is a
stick having a length of one hand and she clarified that the first
and the second beats fell on the same place. During further
cross-examination, she deposed that when the accused beat her
for the third time, she restrained the same by her hand.
11. The learned counsel for the appellant pointed out this
anomaly to disbelieve the version of PW2. It is true that PW2
stated during chief examination that she evaded the third blow
and during cross-examination, she deposed that it was restrained.
In fact, the same would not qualify a material contradiction to
disbelieve the version of PW2, in the matter of occurrence, when
her evidence failed to be shaken in material particulars.
12. Supporting the version of PW2, PW3, Yohannan, who
run the shop owned by the accused, also gave evidence stating
that the accused reached his shop and disturbed him and because
of the threat offered by the accused, he was forced to close the
shop. According to him, he was aged 81 (on the date of his
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examination) and he did not remember all acts in detail and
accordingly, he was declared hostile regarding the remaining
overt acts.
13. Subinraj, son of PW2, examined as PW4 also deposed
about the occurrence and assault against him by the accused as
spoken by PW2. He also deposed that he had witnessed the
accused beating his mother (PW2) for the second time.
14. PW5 examined in this case is the sister-in-law of PW2.
She deposed that at 3 p.m on 02.08.2005, she went to bring back
her child from the school, then she saw PW2 with injuries and
took her to the hospital. She saw the accused beating PW2 with a
wooden stick. In cross-examination, she deposed that, at that
time, her daughter was studying in 1st standard. The saree and
blouse of PW2 were blood-stained. The police questioned her and
then stated to the police that she saw the accused beating PW2
with a wooden stick.
15. In order to support and corroborate the evidence of
PW2, PW3, PW4 and PW5 regarding the occurrence, the
prosecution examined PW1, Dr.Thomas Idikula, who had
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examined PW2 soon after the occurrence. According to PW1, at
3.35 p.m. on 02.08.2005, while he was working as Assistant
Surgeon, Taluk Hospital, Kottarakkara, he had examined PW2 and
issued Ext.P1 certificate which would bear his signature. His
version is that, on his examination, he had noted a lacerated
injury 10 x 0.5 x 0.5 cm over the left parietal region and also
according to him, the “alleged cause is beat on her head by a
person nearby her house”. He testified further that the injury
could be caused as alleged and the injury is simple in nature. No
serious cross-examination effected as regards the medical
evidence.
16. Now the question arises for consideration is whether
the evidence available would substantiate the ingredients for the
offences punishable under Sections 308 and 324 of IPC. In this
regard, Section 308 IPC is extracted hereunder:
“308. Attempt to commit culpable homicide. —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 culpable homicide not amounting to
murder, shall be punished with imprisonment of either
description for a term which may extend to three years, or
with fine, or with both; and, if hurt is caused to any person by
such act, shall be punished with imprisonment of either
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description for a term which may extend to seven years, or
with fine, or with both.
(a) Essential Ingredients .- An offence under this section has
following essential ingredients:
(i) That an act was committed by the accused;
(ii) That the said act was done with the intention or
knowledge that he shall be guilty of culpable homicide not
amounting to murder;
(iii) That culpable homicide does not amount to murder,
(a) if the act is done with the intention or knowledge referred
to in section 300 of the Indian Penal Code, 1860, but under
circumstances which would bring the case within one of the
exceptions mentioned in that section, or
(b) if the act is done with the intention or knowledge referred
to in section 299 but not falling under clauses (2), (3) and (4) of
section 300 of the Indian Penal Code, 1860.
(b) Evidence.- To prove an offence under section 308 of the
Indian Penal Code, 1860 the prosecution is to prove the
following (a) that the accused did some act towards the victim
(b) the act was done with such intention or knowledge and
under such circumstance that had it caused death, the
accused would have been guilty of culpable homicide not
amounting into murder.
Before an accused held to be guilty under section 308 of IPC, it is
necessary to arrive at a finding that the ingredients thereof,
namely, requisite intention or knowledge was existing. There
cannot be any doubt, whatsoever, that such an intention or
knowledge on the part of the accused to cause culpable
homicide is required to be proved. In the absence of proof of the
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said essentials, the offence would fall either under sections 323,
324 or 325 IPC based on the evidence brought in. When, the
accused can be attributed only knowledge that by inflicting such
injuries he was likely to cause death and an attempt to commit
such an offence would be one punishable under section 308 IPC.
Offence punishable under section 308 IPC postulates doing of an
act with such intention or knowledge and under such
circumstances that if one by that act caused death, he would be
guilty of culpable homicide not amounting to murder.
17. Similarly, the ingredients for the offence punishable
under Section 324 of IPC are extracted as under:
“Section 324 IPC - Practice and Procedure:
(a) Essential Ingredients.- An offence under this section has
following essential ingredients:
(i) That the accused voluntarily caused hurt to another
person;
(ii) That such a hurt was in exception to cases provided under
section 334; (iii) That such hurt was caused
(a) by means of any instrument for shooting, stabbing or
cutting, or any instrument which used as a weapon of offence
is likely to cause death; or
(b) by means of fire or any heated substance, or
(c) by means of any poison or any corrosive substance, or
(d) by means of any explosive substance; or
(e) by means of any substance which is deleterious to the
human body to inhale, to swallow, or receive into the blood; or
(f) by means of any animal.”
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To bring home an offence punishable under section 324 of IPC, the
prosecution is to prove: (a) that the accused caused hurt i.e.,
caused bodily pain, or disease or infirmity (vide section 319 of
IPC) to another; (b) that it has been caused voluntarily i.e., with
knowledge or intention to cause; (c) that it has been caused by
any instrument for shooting, or stabbing or cutting, or by any
instrument which qua weapon of offence is likely to cause death,
or by means of fire or any heated substance or by means of any
poison or any corrosive substance or by means of any explosive
substance or by means of any substance which is deleterious to
the human body to inhale to swallow or to receive into blood or by
means of any animal, and (d) that the offence does not attract
section 334 IPC.
18. Here the main contention raised by the learned
counsel for the appellant/accused is that the evidence adduced by
the prosecution is quite insufficient to find the ingredients for the
offences punishable under Sections 324 and 308 of IPC. Apart
from that, the contention otherwise is that the nature of injuries
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caused would not show either any intention or knowledge and
under such circumstances, had it caused the death. Thus, the
offence to be found is one under Section 324 of IPC alone.
19. While addressing the question whether the
ingredients for the offence punishable under Section 308 IPC to
be found from the evidence adduced, it is well settled law that an
accused can be attributed to the knowledge that by inflicting
injury or injuries, he was likely to cause culpable homicide not
amounting to murder. It is equally well settled that the nature of
injury/injuries by itself not decisive, when considering the
intention or knowledge contemplated under Section 308 of IPC.
20. Here is a case, where, when PW2 reached on the spot
to question about the assault on her son, Subinraj, the accused
rushed towards PW2, uttering that he would give what would be
necessary for her. In turn, the accused beat on the back of her
head with a wooden stick thrice. But, two of them fell on the
same place which resulted in the injury noted by the doctor.
Though the third one was evaded. Thus, in the instant case,
beating a lady on her vital part repeatedly for three times by a
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wooden stick would take in the required knowledge of the
accused that such blow on the head, the vital part of the body, by
using a wooden stick, would result in her death.
21. It is argued by the learned counsel for the
appellant/accused that the weapon alleged to be used to beat PW2
by the accused was not recovered. Here the evidence of PW2 and
other witnesses would show that the accused left the place
carrying the wooden stick and the same could not be seized. But
the doctor opined that the injury could be caused in the manner
as alleged, by using a wooden stick. Therefore, the mere
non-recovery of the weapon used in the commission of the
offence, by itself, is insufficient to eschew the entire prosecution
case, ignoring the candid evidence given by the injured person
whose testimony is substantiated by the evidence of PW2 to PW5
and corroborated by the medical evidence and the injury
sustained by her . Therefore, this contention must fail.
22. Thus, on re-appreciation of evidence, this Court is of
the considered view that the prosecution has succeeded in
proving that the appellant/accused had committed the offences
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punishable under Sections 324 and 308 of IPC and hence the
conviction does not require any interference.
23. Coming to the sentence, the sentence is found to be
very reasonable in the facts and circumstances of the case and
therefore, the same also is not liable to be interfered with. Thus,
the sentence is also confirmed.
In the result, this appeal fails and is dismissed by
confirming the conviction and sentence imposed by the Sessions
Court.
Consequently, the order suspending sentence and granting
bail to the accused/appellant stands cancelled and his bail bond
also stands cancelled. The accused/appellant is 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/