1. The sole accused in S.C.No.42/2007 on the files of the Additional Sessions Court, Fast Track Court, (Adhoc)-II, Kottayam, has filed this appeal challenging conviction and sentence imposed against him in the said case as per judgment dated 26.06.2007.

2. Heard Advocate Athul V.Vadakkedom, who is appointed as State Brief in this case since the Advocate, who had filed this appeal, for the appellant has relinquished his engagement. Also heard the learned Public Prosecutor in detail. Perused the verdict impugned and the records available.

3. The prosecution case is that, on 26.10.2003, the accused persons with intention to commit murder of one Suresh (PW2), caused hurt to him in that attempt. However, Suresh survived. On this premise, the prosecution alleges commission of offences punishable under Sections 307 and 324 of the Indian Penal Code (`IPC’ for short) by the appellant/accused.

4. The trial court ventured the matter. PW1 to PW7 were examined, Exts.P1 to P5 and M.O1 and M.O2 were marked on the side of the prosecution. DW1 and DW2 were examined and D1 was marked on the side of defence.

5. The trial court on analysis of evidence found that the appellant/accused committed the offences punishable under Sections 307 as well as 324 of IPC and he was sentenced as under:

                   “The accused is sentenced to undergo rigorous imprisonment for 3 (three) years u/s.307 IPC and 6 (six) months u/s.324 IPC.The sentences to run concurrently.”

6. The learned State Brief vehemently argued that the verdict impugned is unsustainable in law. According to him, in this case, Exts.P4 and P5 wound certificates dated 26.10.2003 were not proved by examining the doctor, who authored the same to find the injuries sustained by PW2 (Suresh) and PW1 (Mony), where the prosecution alleges commission of offence punishable under Section 307 of IPC by the accused on the premise that the accused attempted to commit murder of PW2 and caused stab injuries on his stomach while attempting to commit murder of PW2. He has relied on a decision of this Court reported in [2024 KHC 267 : 2024(3) KHC SN 15 : 2024 KHC OnLIne 267 : 2024 KER 23245 : AIR 2024 NOC 551 : AIR OnLine 2024 Ker. 157], Kunhalima v. Mahammed, rendered in a civil case by a learned Single Judge of this Court with reference to paragraph 23, wherein this Court held that if the contents of a medical certificate were not proved by examining its author, the certificate could not be acted upon to get a clear evidence therefrom to buttress his contention. It is argued by the State Brief further that otherwise the evidence of PW1 and PW2 are insufficient to find commission of offences found by the Additional Sessions Court and, therefore, the verdict would require interference.

7. Zealously opposing the contention raised by the learned State Brief, the learned Public Prosecutor argued that, though Exts. P4 and P5 to be proved by examining its author/authors, proof of the same with the aid of another doctor, who is capable of identifying the signature and handwriting of the author/authors of the same also legally permissible. Here PW7 examined is a doctor, who was familiar with the handwriting and signature of the author of Exts. P4 and P5. Therefore, the evidence of PW7 would suffice the requirement to prove Exts. P4 and P5 as well as the injuries noted therein. It is also submitted by the learned Public Prosecutor that no effective cross examination was effected either disputing his competency or the evidence let in by him regarding Exts.P4 and P5. That apart, the tendering of Exts.P4 and P5 was not at all disputed. The only question put to PW7 in cross-examination was related to the absence of the office seal on those documents. Therefore the argument advanced based on non-examination of the author of Exts.P4 and P5 would not sustain and otherwise the evidence of PW1 to PW3 supported by other evidence categorically established the ingredients for the offences punishable under Sections 307 and 324 of IPC. Therefore, the verdict is liable to be confirmed.

8. The points arise for consideration are:

                   (i) Whether the Sessions Court is right in holding that the accused committed the offence punishable under Section 307 of IPC?

                   (ii) Whether the Sessions Court is justified in finding that the appellant/accused committed the offence punishable under Section 324 of IPC?

                   (iii) Is it necessary to interfere with the impugned judgment in any manner?

          (iv) The order to be passed?

Point Nos.(1) to (iv)

9. In this case, PW1 and PW2 are the injured persons. PW3 is an independent witness. PW1 to PW3 deposed in support of the prosecution, apart from PW7, the doctor and PW6, the Investigating Officer. PW2 examined in this case is Suresh. His version during chief examination is that Nishad stabbed him at the northern side of Karipoothara junction while he was returning after discussing about a work from the house of his friend. When he reached the place of occurrence, Nishad used abusive words and attempted to cause stab injury on his chest and when Mony (PW1) restrained the same, the accused caused injuries on his stomach and he was taken to the hospital and he had undergone surgery. He also deposed that a big light was available on the road to see the occurrence and the accused had worn shirt and dhothi at the time of occurrence and blood stains were there. Further his shirt was torn and he identified the same as M.O1. His version further is that again the accused attempted to cause stab injury on him and when he restrained the same, the stab caused injuries to his head. Thereafter he was taken to the hospital. During cross examination, PW2 stated that he was familiar with the accused before 4 months and he denied a suggestion made by the learned counsel for the accused that PW2 and other person attacked the accused and in the attack the accused also sustained the injuries. Another suggestion made during cross examination is that, PW2 sustained the injuries in the course of the resistance offered by the accused when the accused was attacked by PW1, PW2 and another. This suggestion was also denied by PW2. In fact, nothing extracted during cross examination of PW2 to disbelieve his version as to the occurrence.

10. Coming to the evidence of PW1, he testified that the accused assaulted him as well as PW2 (Suresh). According to him, the occurrence was on 26.10.2003 on the northern side of Karipoothara junction. His version as regards to arrival of PW1 and PW2 at the place of occurrence is similar to that of PW2. According to him, Nishad stabbed PW2 and when he restrained the same, the same caused injury on his chest and he also caused stab injury on the stomach. He had witnessed the occurrence in the electric light available on the road and also the light available from the nearby house. He also spoke about lodging of Ext.P1 FIS, and also hospitalization of PW2. When he was cross examined to ascertain the details of the place of occurrence, he had given rational answers. During cross examination of PW1, a suggestion was made to the effect that the accused, a member of Scheduled Caste community had noticed watching of video cassettes by PW1, 2 and another and at this juncture he was manhandled by them. This suggestion was emphatically denied by PW1.

11. PW3 examined in this case is Shibu. He had also given the evidence supporting the occurrence and also about taking PW2 to hospital in an autorickshaw. Ext.P2 is the scene mahazar tendered in evidence through PW4, who admitted his signature in Ext.P2 and he fully supported the prosecution case. PW5 examined in this case witnessed the preparation of Ext.P3 mahazar while M.O1 shirt and M.O2 dhothi worn by PW2 Suresh were taken by the police. Though he was cross examined, nothing elicited to discredit his evidence in any manner.

12. PW7 examined in this case is Dr.S.Sunil. His version is that while working as Assistant Surgeon at Medical College Hospital, Kottayam, Dr.David who issued Exts.P4 and P5 was his colleague and he had familiarity with the signature and handwriting of Dr.David. Then he identified the handwriting and signature of Dr.David in Exts.P4 and P5. As regard to Exts.P4 and P5, his version is that at about 8.30 p.m on 26.10.2003, Dr.David examined Suresh (PW2) and issued Ext.P4, wound certificate showing the injuries, viz.

                   “1. A gaping wound of 6*4 cm up to the peritoneal cavity with omentum protruding through the wound.

                   2. Lacerated wound 5*0.5 cm over the scalp on left parietal region. No fracture of skull clinically.”

Similarly on the same day, Dr.David had examined M.S.Mony (PW1) and issued Ext.P5 certificate showing the following injuries:

                   “1.Gaping wound 3*1 cm on the postero-medical aspect of right forearm towards the middle part. No evidence of muscle, nerve on vascular injury clinically.”

According to him, the opinion as to the cause of injuries could be as alleged. He also deposed that injury No.1 in Ext.P4 is a serious wound which may cause death in the natural course. The Investigating Officer, who recorded Ext.P1 given by PW1, had supported the prosecution case regarding registration of Ext.P1 FIR and preparation of Ext.P2 scene mahazar, recovery of M.O1 and M.O2 as per Ext.P3 mahazar.

13. Going through the evidence of PW1 to PW3, it is well discernible that the appellant/accused attempted to cause stab injury in the chest of PW2 with intention to do away him and in turn PW2 sustained serious injury on his stomach as deposed by PW7, PW1 to PW3 and Ext.P4 supported by the doctor, as discussed herein above, though PW2 survived the assault. Similarly lacerated wound also found on the scalp in tune with the version of PW1 and PW2. Ext.P5 also would suggest an injury on the right forearm of PW1 corroborating the version of PW1 and PW2.

14. When Medical certificates would be produced before the court to prove the injury/injuries sustained by the injured person/persons, normally the same should be tendered in evidence through the author/authors thereof. However, in the absence of the author/authors thereof, law permits examination of a person who is familiar with the handwriting and signature of the author/authors to tender the same in evidence. In Kunhalima v. Mahammed's case (supra), where a learned Single Judge of this Court considered authenticity of a medical certificate produced in a civil case and held that non examination of the author thereof was fatal and in such contingency the document could not be said to be proved, relying on a decision of the Apex Court reported in [1960 SCC OnLine Guj. 29], Municpal Corporation of City of Ahmedabad v. Gandhi Shanthilal Giridharlal and Anr. In fact, a rigid law could not be laid stating that without examination of the author of a document, the document cannot be tendered in evidence since the same can be tendered in evidence through a person, who is familiar with the handwriting and signature of the person when he deposes in that line before the court. Here tendering of Exts.P4 and P5 through PW7, who was familiar with handwriting and signature of Dr.David, in the absence of Dr.David is a procedure recognized by law. It is interesting to note that during examination of PW7, for tendering Exts.P4 and P5 in evidence, no objection was raised and accordingly Exts.P4 and P5 were tendered in evidence through PW7. Similarly PW7 was not cross examined to make his evidence unacceptable to prove Exts.P4 and P5. In such a case, it is not safe to hold that Exts.P4 and P5 were not proved. As such the contention is of no avail to the appellant/accused.

15. In order to find out the ingredients to attract offence under Section 307 of IPC, it is necessary to extract the said provision 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 hurt 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.”

                   Thus the ingredients are;

                   (i) That the accused did an act;

                   (ii) That the act was done with intention or knowledge and under such circumstances to cause a bodily injury as the accused knew to be likely to cause death or that such bodily injury was in the ordinary course of nature to cause death, or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury a is likely to cause death; and

                   (iii) That the accused had no excuse for incurring the risk of causing such death or injury.

                   In other words, the ingredients are;

                   (i) that the death of a human being was attempted;

                   (ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and

                   (iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as:

                   (a) the accused knew to be likely to cause death; or

                   (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury (see decision in Chimanbhai Jagabhai Patel v. State of Gujarat, reported in AIR 2009 SC 3223 : (2009) 11 SCC 273).

16. In the decision in State of Madhya Pradesh V. Saleem, reported in (2005) 5 SCC 554, the Apex Court held that to sustain a conviction under Section 307 IPC, it was not necessary that a bodily injury capable of resulting in death should have been inflicted. As such, non-conviction under Section 307 IPC on the premise only that simple injury was inflicted does not follow as a matter of course. In the said judgment, it was observed that 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. The position that because a fatal injury was not sustained alone does not dislodge Section 307, IPC conviction has been reiterated in Jage Ram v. State of Haryana, (2015) 11 SCC 366 and State of Madhya Pradesh v. Kanha, (2019)3 SCC 605. Yet, in Jage Ram (supra) and Kanha (supra), it was observed that while grievous or life threatening injury was not necessary to maintain a conviction under Section 307, IPC, 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.

17. To sum up on re-appreciation of evidence with reference to the ingredients for the offences found to be committed by the appellant/accused, the finding of the Sessions Court as to commission of offences punishable under Sections 307 and 324 of IPC by the accused is only to be justified, since the prosecution succeeded in proving commission of the said offences by the accused beyond reasonable doubts, relying on the ocular evidence of PW1 to PW3, supported by the medical evidence of PW7 and Exts.P4 and P5, well supported by the other evidence. Therefore the conviction doesn't require any interference.

18. As regards to sentence, it is very pertinent to note that for the offence punishable under Section 307 of IPC the punishment provided is imprisonment of either description for a term which may extend to ten years and shall also liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life (w.e.f 01.01.1956) or the punishment provided herein above. Thus unless the court is not imposing the grave sentence of imprisonment for life on finding cause of hurt to the victim, the court proposes to impose lesser punishment, the same must include jail sentence and imposition of fine since conjunction, viz. “and” is used in the Statute in between ‘imprisonment’ and ‘fine’ making jail sentence and fine (both) mandatory. If so, the sentence imposed by the learned Sessions Judge is insufficient and is not in accordance with law. On going through the judgments rendered by various trial judges, this anomaly could be noticed in large number of judgments rendered by the trial Judges and the same is a very serious matter as no court is empowered to avoid or reduce minimum sentence prescribed by law. Therefore it is necessary to alert the trial court Judges to be vigilant while imposing sentence to ensure that the sentence prescribed by the statute shall be imposed without fail.

19. Coming to the sentence, the Sessions Court imposed three years and six months of rigorous imprisonment for the offences punishable under Sections 307 and 324 of IPC respectively. In consideration of the request made by the learned State Brief, I am inclined to modify the sentence.

20. In the result, the appeal stands allowed in part by confirming the conviction and modifying the sentence as under:

                   (i) The appellant/accused is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.50,000/-(Rupees Fifty thousand only) for the offence punishable under Section 307 of IPC and in default of payment of fine to undergo rigorous imprisonment for a period of five months.

                   (ii) The appellant/accused is sentenced to undergo rigorous imprisonment for a period of four months for the offence punishable under Section 324 of IPC.

                   (iii) Fine if realised, Rs.30,000/- (Rupees Thirty thousand only) out of the same shall be given to PW2 and Rs.5,000/- (Rupees Five thousand only) shall be given to PW1 under Section 357(1) (b) of Code of Criminal Procedure.

21. The substantive sentence shall run concurrently and default sentence shall run separately.

22. The Registry is directed to forward a copy of this judgment to the trial court concerned for information and further steps.

The Registry also shall circulate this judgment to all Criminal Courts in the State to apprise of them of the observation in paragraph No.18 of the judgment, to be followed without fail in future.