1. The judgment in S.C No.795/2009 on the files of the Additional Sessions Court-III, Alappuzha dated 15.02.2016 is under challenge in this appeal at the instance of the 1st accused, who is the appellant herein.

2. Heard the learned counsel for the appellant/1st accused and the learned Public Prosecutor, in detail. Perused the verdict impugned and the evidence available.

3. In this case, the prosecution alleges commission of offences punishable under Sections 324, 326 and 308 r/w 34 of Indian Penal Code (for short 'the IPC'), by the appellant/accused persons.

4. The prosecution case is that, at about 5.30 p.m on 23.02.2008, the accused Nos. 1 and 2 attempted to commit culpable homicide not amounting to murder of PW1 and in the occurrence PW1 sustained serious injuries including fracture, though he survived. Apart from that, PW2 also sustained injuries.

5. The learned Sessions Judge framed charges for the said offences and proceeded with the trial. During trial, PW1 to PW10 were examined and Exts.P1 to P7 were marked on the side of the prosecution. On the side of the defence, DW1 and DW2 examined and Ext.D1, Discharge slip was marked.

6. The learned Special Judge evaluated the evidence and finally found that the appellant/1st accused had committed offences punishable under Sections 324 and 326 of IPC and accordingly, he was convicted and sentenced as under:

                  “In the result, the accused is sentenced to undergo rigorous imprisonment for one year for the offence punishable u/s.324 of IPC and he is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/-in default to undergo simple imprisonment for one month for the offence punishable u/s.326 of IPC. The substantive sentences shall run concurrently. Set off is allowed u/s.428 of Cr.P.C.”

7. In this case, the 2nd accused was passed away after start of trial.

8. The learned counsel for the appellant/1st accused argued that the entire prosecution allegations are false and according to him, there was a scuffle involving the appellant and PW1, one hour before the present alleged occurrence and thereby the appellant sustained injuries and accordingly, he got admitted in Taluk Hospital, Cherthala on 23.02.2008 and continued there till 28.02.2008, as evident from Ext.D1, discharge slip issued there from. He also submitted that DW2, though not the author of Ext.D1, supported the admission treatment of the accused from 23.02.2008 to 28.02.2008. Therefore, the prosecution case as to commission of the above offences by the appellant/1st accused, who at the time of the alleged occurrence was admitted in the hospital on 23.2.2008 is an absolute falsehood. It is submitted further that, in this case a sickle was alleged to be used by the appellant/1st accused to beat PW1 and PW2, but the weapon was not recovered and the same also is fatal to the prosecution. Therefore, the learned counsel pressed for interference in the verdict impugned, to record acquittal.

9. The learned Public Prosecutor strongly supported the verdict impugned and submitted that DW2 had no direct knowledge regarding Ext.D1, discharge slip and he never deposed before the court that the appellant/1st accused was admitted in the hospital before the occurrence. He also submitted that, otherwise the evidence of DW1, the autorickshaw driver, who had taken appellant/1st accused to the hospital deposed that he had taken the appellant/1st accused to the hospital at 5.30 p.m, that means after the occurrence. Therefore, the evidence of DW1 and DW2 supported by Ext.D1 is quite insufficient to prove the defence of alibi taken by the accused. It is submitted by the learned Public Prosecutor further that the weapon was not recovered and the same was not challenged during cross-examination of PW9 or PW10, who had investigated this case in any manner. He also submitted that the recovery of weapon is not an absolute necessity to establish criminal culpability. According to him, when the evidence available on record is wholly reliable to be acted upon, the same can be the sole basis of conviction, even without recovery of weapon.

10. It is also submitted that here PW1 and PW2, the injured witnesses, PW3 and PW4, the other occurrence witnesses also given evidence supporting the occurrence. That apart, PW7, the Doctor who had examined PW1 and PW2 and issued Ext.P3 Wound Certificate to PW1 (Tomy) and Ext.P4, Wound Certificate to PW2 (Babychan) including Ext.P5, Discharge Certificate categorically given evidence supporting the prosecution case. Therefore, the verdict would not require any interference.

11. Having appraised the rival submissions, the points arise for consideration are:

                  (i) Whether the Sessions Court is in right in holding that the 1st accused/appellant committed offence punishable under Section 324 r/w 34 of IPC?

                  (ii) Whether the Sessions Court is justified in holding that the 1st accused/appellant committed offence punishable under Section 326 r/w 34 of IPC?

                  (iii) Whether the trial court verdict requires interference?

                  (iv) Order to be passed.

Points i to iv

12. The prosecution given much reliance on the evidence of PW1 to PW4 supported by the medical evidence to prove commission of offences punishable under Sections 324 and 326 of IPC by the appellant/1st accused.

13. PW1 examined in this case is Lonan @ Tomy. He deposed that he knew the accused at the dock and he pointed out the first person as the first accused and second person as the second accused, who struck the brother of PW1. According to him, he was doing masonry works and he studied up to 9th standard. There occurred a scuffle in between the 1st accused and himself and his brother examined as PW2. Thereafter, when he along with PW2 (his brother) while moving towards the house, the appellant/1st accused taken a sickle and his father also taken a sickle. Then the appellant/1st accused stabbed beneath the left eye and thereby he sustained injury on his nose and there was bleeding. Soon, appellant/1st accused again stabbed on the thigh above his left knee and struck on his left buttock. After the occurrence, he was taken by some people to the Cherthala Hospital and then to Medical College Hospital, Kottayam. The appellant/1st accused caused cut injury on the lip of PW2, his brother, when PW2 attempted to save him. Further, the 2nd accused also caused cut injury on the back of his brother (PW2). The lip of PW2 was stitched and he was subjected to CT scan examination at the Medical College Hospital, Kottayam. According to him, the Doctor opined that if the injury was a little deeper, death would have been occurred. He testified further that his nasal bone and maxillary bones were fractured. According to him, he got admitted for five days in the Medical College Hospital, Kottayam. Though, his brother was also admitted in the hospital, he was discharged earlier. He deposed further that one Sabu and Parameswaran, who witnessed the occurrence had taken them to the hospital. He identified Ext.P1 as the First Information Statement that he had given to the Police in this occurrence. During cross-examination, attempt was made to make him as a member of CPM, but he denied the same. During cross-examination, he deposed that the time of occurrence was at 5.30 p.m. and he also deposed about the place of occurrence.  In fact, nothing extracted during cross- examination of PW1 to shake his version in the matter of occurrence. During re-examination PW1 testified that he did not go for work on the date of occurrence as his child was not well.

14. Joseph @ Babychan, the elder brother of PW1, was also examined as PW2 in support of the prosecution case. He also supported the occurrence as well as the hospitalization of PW1 and himself. He also had given rational answers to the questions put to him during cross-examination, where by corroborated the evidence of PW1. PW3 and PW4, viz., Sabu and Parameswaran, also supported the prosecution case and given evidence speaking about the occurrence, as deposed by PW1 and PW2 and nothing extracted to disbelieve their versions during cross-examination.

15. Ext.P2 is the Scene Mahazar tendered in evidence through PW5, Ramesan. In this case, the crucial evidence as regards to the injury sustained to PW1 and PW2 would come from the version of PW8, Dr.Renjini R.P. She deposed that while working as Lecturer in Surgery, Medical College Hospital, Kottayam on 21.11.2008, she had issued Ext.P5, Discharge Certificate stating that PW1 was seen by Dr.Shaji and he had diagnosed 'fracture anterior wall of frontal bone and right nasal bone'. During cross-examination, she stated that since Dr.Shaji was not in service, she had issued Ext.P5, Discharge Certificate. Apart from the evidence of PW8, PW7, Dr.Khayarunnissa, also was examined to prove the hospitalization of PW1 and PW2 at 6.30 p.m. On 23.02.2008. PW7 supported examination of PW1 and PW2 and issuance of Exts.P3 and P4 wound certificates; showing the following injuries:

                  “PW1

                  i) Incised wound 6x1 cm on medial side of left eye, forehead, lateral side of nose.

                  ii) Incised wound 3x1 cm on the back of left thigh.

                  ii) small abrasion on the left ankle.

                  PW2

                  i) a lacerated wound 2x1 cm upper lip right side.

                  ii) multiple abrasion on the back of PW2 with complaints of pain on his right thumb.”

16. In this case, PW9 and PW10 are the Investigating Officers, who conducted the investigation. They supported the prosecution case.

17. However, the case of the appellant/1st accused is that he was admitted in the hospital even prior to the occurrence and he sustained injuries in another occurrence which occurred one hour before the occurrence in this case. In this connection, the main document relied upon by the accused is Ext.D1, discharge slip, which would show that the appellant/1st accused was admitted in Taluk Headquarters Hospital, Cherthala on 23.02.2008 and discharged on 28.02.2008. As per clinical finding in Ext.D1, there was contused abrasion 3 x 2 cm on chin. It is relevant to note that, DW2 was examined to prove the hospitalization of the appellant/1st accused in between 23.02.2008 and 28.02.2008.

18. On tracing the evidence, DW2, Dr.Subaida, deposed that, as per Ext.D1, the appellant was an inpatient at Taluk Headquarters Hospital, Cherthala from 23.02.2008 to 28.02.2008. During cross-examination, it is stated that Ext.D1 was issued by Dr.Thomas T.U and she was aware of his signature. During further cross-examination, DW2, the doctor deposed that, she did not see the appellant or done anything. She also stated that in Ext.D1 there was no seal of the hospital. In fact, DW2 never said the exact time the appellant was admitted in the hospital on 23.02.2008. The defence side, who examined DW1 made no attempt in this regard. Thus the evidence of DW1 is no way would show that the appellant was admitted in the hospital before this occurrence. Similarly, Ext.D1 also would not suggest the time. Thus, while addressing the evidence of DW2 and Ext.D1, evidence of DW1 also to be considered. DW1 examined in this case is the autorickshaw driver, who took the appellant/1st accused to the hospital. During his chief examination, he deposed that, on a day during the 2nd month of 2008, he had taken the appellant/1st accused to the hospital, without specifying any date. His evidence further is that, he had taken the accused at 5.30 p.m to the hospital. Hence, the evidence of DW1 and DW2 taken together, the inference is that, in the occurrence the appellant/1st accused also sustained contused abrasion on the chin and he also hospitalized after the occurrence. In this connection, it is pertinent to hold that when plea of alibi is the defence, the accused must prove the same, excluding any other hypothesis that he was not at the place of occurrence at the time of occurrence with extreme certainty and mere probability would not suffice the requirement. Therefore, the contention raised by the learned counsel for the appellant/1st accused is that the appellant/1st accused was not at the place of the occurrence during the relevant time and he was hospitalized at the time of occurrence cannot be countenanced, as rightly found by the learned Sessions Judge.

19. It is true that, the sickle alleged to be used to cause injury including fracture to PW1 and PW2 was not recovered and in this regard nothing was asked to the Investigating Officers, PW9 and PW10, during their examination. In this connection it is relevant to note that, ' the recovery of weapon alleged to be used to commit and cause injury to a victim is a corroborative piece of evidence to support the substantive evidence'. However, law doesn’t insist recovery of weapon as an absolute mandate to believe the evidence given by the witnesses regarding cause of injuries by using a weapon, that too supported by medical evidence. Thus, mere non-recovery of weapon would not be sufficient to disbelieve the prosecution case in toto. In the instant case, the evidence of PW1 and PW2 as regards to the use of sickle by the appellant/1st accused and the evidence of PW7, the doctor that the injuries could be caused by using a sickle found to be reliable and therefore, non-recovery of the weapon by itself is not a ground to disbelieve the prosecution case.

20. Now, it is necessary to look into the ingredients for the offence punishable under Section 326 of the IPC, which reads as under:

                  “326. Voluntarily causing grievous hurt by dangerous weapons or means.—Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt 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

                  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 it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with

                  1[imprisonment for life], or with imprisonment of either description for a term

                  which may extend to ten years, and shall also be liable to fine.

                  Essential Ingredients- An offence under this section has following essential ingredients:

                  (i) That the accused caused grievous hurt to any person;

                  (ii) That such hurt was caused voluntarily;

                  (iii) That such grievous hurt (as contemplated under section 320)

                  was caused by any means given under section 324 of the Indian

                  Penal Code, 1860.”

21. Similarly, the ingredients for the offence punishable under Section 324 of the IPC are as under:

                  “(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.

                  (b) Evidence.- To bring home an offence punishable under section 324, the prosecution is to prove: (a) that the accused caused hurt i.e., caused bodily pain, or disease or infirmity (vide section 319 of the Indian Penal Code, 1860) 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.”

22. Thus, on re-appreciation of evidence, this Court is of the view that, the learned Sessions Judge rightly appreciated the evidence and came to the conclusion that the appellant/1st accused had committed the offences punishable under Sections 324 and 326 of IPC. Thus, none of the contentions raised by the learned counsel for the appellant/1st accused to assail the verdict are found to be acceptable. Therefore, the said contentions are negatived. Thus, the appeal fails and the conviction is liable to be confirmed. Coming to the sentence, the same also is very reasonable on par with the nature of the injuries sustained. Therefore, the same is also liable to be confirmed.

23. In the result, this appeal fails and is dismissed accordingly.

24. The order suspending sentence and granting bail to the accused stands vacated, with direction to the 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 the judgment to the Sessions Court, forthwith for information and compliance.