1. The first accused in S.C. No.376/2009 on the files of the Additional Sessions Court -IV, Palakkad, has filed this appeal, under Section 374 of the Code of Criminal Procedure, challenging the conviction and sentence imposed by the Sessions Judge, against him as per the judgment dated 15.01.2014. The State of Kerala, represented by the Public Prosecutor is arrayed as the respondent herein.

2. Heard the learned counsel for the appellant/first accused and the learned Public Prosecutor in detail. Perused the judgment impugned and the records of the Sessions Court.

3. The prosecution case is that at 20.45 hours on 17.6.2008, in Puthussery panchayat, owing to previous enmity, accused Nos. 1 and 2 shared common intention to cause culpable homicide of PW1 and stabbed him with the said intention. But he survived. Thereby the prosecution alleged commission of offences punishable under Sections 341, 323, 294(b), 308 read with 34 of the Indian Penal Code (hereinafter referred to as the 'IPC', for short), by accused Nos. 1 and 2.

4. Before start of trial, the second accused died. Therefore, the learned Sessions Judge, framed charge for the above said offences against the appellant/first accused and tried the case. During trial, PW1 to PW7 were examined, Exts.P1 to P12 and MO1 were marked on the side of the prosecution. No defence evidence was adduced. On appreciation of evidence, the learned Sessions Judge found that the appellant/first accused committed offences punishable under Sections 323 and 308 read with 34 of the IPC and convicted and sentenced the appellant/first accused as under:-

                   “ In the result,

                  i) First accused is found guilty of the offences punishable under Sec.323 and 308 r/w 34 of IPC.

                  (ii) First accused is convicted and sentenced to undergo rigorous imprisonment for one year for the offence under Sec.323 of IPC. He is convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of 10,000/-(Rupees ten thousand only) for the offence punishable u/s Sec.308 of IPC. In default of payment of fine, the first accused shall undergo rigorous imprisonment for 6 more months.

                  (iii) The first accused is found not guilty of the offence punishable under Sec.341 IPC and he is acquitted of the said offence.

                  (iv) The entire amount of fine, if collected or realised, shall be paid to PW1, the injured as provided  under  Sec.357(1)(b)  Cr.P.C.

                  (v) Substantive terms of imprisonment shall run concurrently.

                  (vi) Period of detention undergone by first accused shall be set off against the term of imprisonment imposed on him as provided under Sec.428 Cr.P.C.

                  (vii) Charge against the second accused, who is reported to be no more, stands abated.

                  (viii) MO1 knife shall be destroyed after the period of appeal.”

5. The learned counsel for the appellant/first accused argued that there are omissions and contradictions in the evidence of PW1 and according to him, though MO1 weapon alleged to be used by the first accused to cause stab injury on the chest of PW1 was recovered by the Investigating Officer by following the procedure under Section 27 of the Indian Evidence Act, during chief examination of PW1, the injured, though he initially identified MO1 as the weapon used by the first accused to stab him, when MO1 was shown by the Public Prosecutor with suggestion positing that MO1 was used to cause the stab injury, he denied the same. According to him, the weapon was a big weapon rather than MO1. It is also pointed out that during examination of PW7, as regards the evidence given by PW1 that he was stabbed when he was attempting to meet the Panchayat Member was not spoken to before PW7 and also he had not given statement that the place of occurrence was 50 feet away from the hospital. It is pointed out further that in order to find attempt to commit culpable homicide not amounting to murder, some evidence showing an intention to cause culpable homicide to be adduced and in the instant case, no such evidence forthcoming. It is also submitted that independent witnesses examined as PW2 and PW3 were turned hostile to the prosecution. Therefore, the prosecution case failed to be proved beyond reasonable doubt and the learned Sessions Judge went wrong in believing the evidence of PW1, which is not wholly reliable to enter into conviction. Accordingly, he pressed for interference in the verdict impugned.

6. Whereas the learned Public Prosecutor supported the verdict and argued that the evidence of PW1 is wholly reliable, even though he disputed MO1 as the knife used to cause stab injury. According to him, MO1 was taken into custody as per Section 27 of the Indian Evidence Act and therefore, the anomaly in the evidence of PW1 as regards to MO1 would not stand in the way of disbelieving the prosecution case spoken by PW1 and to record acquittal.

7. In view of the rival submissions, the points arise for consideration are:

                  1. Whether the Sessions Court is justified in finding that the first accused committed the offence punishable under Section 323 of the IPC?

                  2. Whether the Sessions Court went wrong in holding that the first accused committed the offence punishable under Section 308 of the IPC?

                  3. Whether the verdict of the Sessions Court would require interference?

                  4. Order to be passed?

8. Point Nos. 1 to 4:- The prime witness, who spoke about the occurrence, in the instant case, is none other than Lishore, the injured, who was examined as PW1. PW1 deposed that he was a native of Thrissur and had been residing at Attappallam and he had engaged in filtering of sand and he knew the first accused 'Thampi'. Regarding the occurrence, he deposed that the occurrence was 5 years prior to his examination (he was examined on 26.12.2013). According to him, the place of occurrence was a place near Attappallam and there was theft of sand from his sand filtering place and he had informed the same to the police. Regarding the same, at 8.30 p.m., the first accused quarrelled with him and slapped on the left side of his face by using his hand. Then he moved towards Sudheer, the Panchayat Member to inform the same. But when he reached Pampampallam, Murukesan alias Thampi beat him and then he stabbed on his chest. He further deposed that the second stab, fell on the left side of his ribs and it was done by the first accused. According to him, the second accused also stabbed him and the accused done the overt acts stating that he had been hailing from Thrissur, and he should not be 'too big' in Attappallam.

9. He testified about the lodging of Ext.P1 FIS in this regard, and his hospitalisation at District Hospital and thereafter, at Medical College Hospital, Thrissur. It is true that, initially, on seeing MO1, he deposed that MO1 was the knife used to stab him. But when the learned Public Prosecutor shown the knife and asked as to whether the same was the knife used to stab him, his answer was that first accused had used a big knife and the same was usually used to remove the skin of goats. During cross examination, he stated that the first accused beat him near the shop once and the second occurrence was 50 feet away from the first occurrence and the place of occurrence was visible from the shop. He did not meet the Panchayat Member and he did not state the same to the Police. He repeated that the first accused stabbed him twice and the second one fell on the left side of his ribs. He also deposed during cross examination that, he had identified the accused persons by the street light available therein.

10. PW2 and PW3 turned hostile to the prosecution.

11. PW5 examined in this case is Dr. J.S.Shyja and she deposed that at 10.15 p.m., on 17.06.2008, while working as Assistant Surgeon, District Hospital, Palakkad she had examined Lishore (PW1), came with history that he was beaten by using a knife meant for cutting goat and he had noted injuries viz.,(1) incised wound 2 x 1 cm on the left chest and (2) incised wound 1 x 0.5 cm on the right thumb. He also deposed that injuries could be caused as alleged and he deposed in tune with the contents of the wound certificate which would bear his signature and seal. Thus the wound certificate was tendered in evidence through PW5 and was marked as Ext.P7. No serious cross examination was effected to shake the version of the Doctor.

12. Apart from the evidence of PW1 and PW5, the prosecution examined other witnesses also. Ext.P6 is the scene mahazar proved through PW4. Ext. P6 would show that the spot of incident is 150 metres south of Attappallam road junction. The exact spot is on the southern side of tarred road which leads to Selvapuram from Pallikkad. PW1 testified that after some heated exchange of words between the parties at Attappallam centre, the incident of stabbing occurred at Pampampallam. The scene mahazar also would show that Attappallam-Pampampallam road was the place of occurrence. So regarding the scene of occurrence also, there is no anomaly.

13. PW7, the investigating officer deposed in detail regarding the investigation he had done. He testified that pursuant to the disclosure statement given by the first accused while he was in custody, regarding authourship of concealment (the relevant portion of which was marked as Ext.P9), the knife was recovered from the residence of the first accused as taken by him, consequential to the disclosure statement. The knife was identified as MO1 by PW7. The recovery of MO1 is admissible under Sec.27 of Indian Evidence Act. Regarding the use of MO1, knife by the first accused to stab PW1, the evidence of PW1 read along with the evidence let in by PW7 to be evaluated together to address the challenge regarding identity of MO1. In this connection, it was observed by the learned Sessions Judge that “in the circumstances, the fact that when MO1 was shown to PW1 again by learned Additional Public Prosecutor, the former chose not to identify it as the weapon of offence cannot lead to rejection of his entire evidence. In fact he would first say that it was with MO1 knife that he was attacked. The evidence of PW5, the medical officer shows that injuries mentioned in Ext.P7 could be caused as alleged. So, the contention raised on this count will not sustain.”

14. It is a well settled law that, in a case, where causing injury to a victim by using a weapon by an accused is alleged, recovery of the weapon under Section 27 of the Evidence Act is a strong corroborative piece of evidence to believe that the evidence given by the victim that the accused used the said weapon to assault him. But that doesn't mean that non-recovery of the weapon used in a crime would be fatal to the prosecution, provided there is other reliable and credible evidence. It is a well settled law that the recovery of the weapon of a crime is not a sine qua non (an absolute necessity) for a conviction if direct eye witnesses, their testimonies and medical evidence firmly establish the guilt of the accused. See the decisions (1) Lakhan Sao v State of Bihar and Another [(2000) 9 SCC 82] (2) State of Rajasthan v. Arjun Singh and Others [(2011) 9 SCC 115] (3) Mritunjoy Biswas v. Pranab @ Kuti Biswas and another [(2013) 12 SCC 796] (4) Gulab v. State of U.P. [(2022) 12 SCC 677,] (5) Pritinder Singh @ Lovely v. State of Punjab [(2023) 7 SCC 727] and (6) Om Pal and others v. State of Uttarakhand. [2025 INSC 1262]. It is equally well settled that, when the prosecution evidence is meddled with other serious defects, non-recovery of weapon would add to the defects in the overall evidence as held in Harendra Sarkar v. State of Assam [(2008) 9 SCC 204]. In fact, when a witness who deposes before a Court of law that the accused used a weapon to assault him and when shown the weapon for identification, when the witness denies the same, that by itself is not a reason to disbelieve the evidence given by the witness in toto and to acquit the accused, if the witness is otherwise wholly reliable and tells a clear story of what actually occurred. Here, initially MO1 was identified by PW1 as the weapon used to assault him, but later when it was specifically suggested by the learned Public Prosecutor, he denied the same, describing the weapon as one bigger in size without saying anything that the weapon is totally a different one in structure. It is relevant to note that apart from this deviation, the evidence given by PW1 as to the occurrence, in fact, is wholly reliable since the same was not shaken by exercise of cross examination. In such view of the matter, this anomaly alone is insufficient to hold that the entire prosecution evidence to be discarded.

15. Now, it is necessary to look into the ingredients for the offence punishable under Section 308 of the IPC, which reads as under:

                  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 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 can be held to be guilty under section 308 of the Indian Penal Code, 1860, it was 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. Six persons allegedly accosted the injured. They had previous enmity. Although overt-act had been attributed against each of the accused who were having lathis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body. The accused, therefore, could not be said to have committed any offence under section 308 IPC. The same would fall under sections 323 and 325 thereof. 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.

                  Whether the injury was grievous or simple deserved a back seat in face of the charge under section 308 read with section 34 of the Indian Penal Code, 1860. Offence punishable under section 308 IPC postulates doing of an act with such intention of 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. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under section 308 IPC whereas punishment for simple hurts can be meted out under sections 323 and 324 and for grievous hurts under sections 325 and 326 IPC. Qualitatively, these offences are different.

16. Similarly, the ingredients for the offence punishable under Section 323 of the IPC are as under:

                  323.Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

                  a) Essential Ingredients:- An offence under section 323 has following essential ingredients:

                  (i) That the accused caused hurt to another person;

                  (ii) That he caused such hurt voluntarily

                  (iii) That such a case was not covered under section 334 of the Indian Penal Code, 1860.

                  (b) Evidence. -To bring home an offence under section 323 of the Indian Penal Code, 1860 the prosecution is to prove (a) the victim suffered from bodily pain, disease or infirmity; (b) that the accused caused the aforesaid bodily pain etc.; (c) that the accused did so intentionally or with knowledge that in the process hurt would be caused. In a case evidence on record established that appellant was one of the miscreants and he participated in the assault of complainant.

17. Adverting to the ingredients to prove the offence punishable under Section 308 of the IPC, doing an act (1) either with intention of causing culpable homicide or (2) with knowledge that such an act if succeeds he would be guilty of culpable homicide not amounting to murder. Similarly, in order to find commission of offence punishable under Section 323 of the IPC, the prosecution must prove that (a) the victim suffered from bodily pain, disease or infirmity; (b) that the accused caused the aforesaid bodily pain etc.; (c) that the accused did so intentionally or with knowledge that in the process hurt would be caused.

18. Even though, it is argued by the learned counsel for the appellant/first accused that in order to find commission of offence punishable under Section 308 of the IPC, the intention to do culpable homicide to be established, the legal position is that intention or knowledge likely to cause death by the act done would suffice the requirement. The evidence of PW1 would show that the first accused stabbed him on his chest saying that he should not too big in Attappallam. The doctor found injury No. 1 on the left side of chest, in fact, these aspects would show the knowledge required to complete the offence punishable under Section 308 of IPC. Thus on re-appreciation of evidence, it could be found that, the learned Sessions Judge, on evidence, correctly found that the appellant/first accused committed the offence punishable under Section 308 of the IPC. But coming to the offence punishable under Section 323 of the IPC, even though PW1 deposed that the appellant/first accused slapped on the left side of his face by using his hand, he did not depose any thing regarding any pain suffered by him. Thus the ingredients for the offence punishable under Section 323 of the IPC not fully established. Thus the learned Sessions Judge went wrong in finding that the appellant/first accused committed offence punishable under Section 323 of the IPC. Therefore, while confirming the conviction imposed by the learned Sessions Judge for the offence punishable under Section 308 of the IPC, the conviction and sentence imposed on the appellant/first accused for the offence punishable under Section 323 of the IPC stand set aside.

19. Coming to the sentence imposed by the Sessions Court for the offence punishable under Section 308 of the IPC, rigorous imprisonment for a period of three years, some leniency can be considered in the matter of sentence and the same can be reduced.

20. In the result, this Criminal Appeal is allowed in part. The conviction and sentence imposed by the learned Sessions Judge for the offence punishable under Section 323 of the IPC are set aside. The conviction impugned under Section 308 of the IPC stands confirmed, while modifying the sentence as under:-

The appellant/first accused is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 10,000/- for the offence punishable under Section

308 of the IPC. In default of payment of fine, he shall undergo default imprisonment (rigorous) for a period of six weeks.

21. The bail bond executed by the appellant/first accused shall stand cancelled. The order suspending sentence and granting bail to the appellant/first accused stands vacated, with direction to the appellant/first accused to appear before the Sessions Court forthwith to undergo the sentence, 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 Additional Sessions Court - IV, Palakkad, for information and further steps.