CHACKO Vs. STATE

JUDGEMENT

(1.) ON behalf of the appellant it was contended in this court that the evidence relied upon by the Sessions judge for holding that it was the accused who cut Pw. 1 and inflicted the injury on him is utterly unreliable and that in any view of the case the conviction under S. 307 I. P. C. is not sustainable and the accused could be convicted only under S. 326 I. P. C. The motive for the assault, according to the prosecution, was previous enmity, and some evidence was also adduced to prove this previous enmity. The learned judge believed the prosecution evidence regarding motive and found that there was bitter ill-feeling between Pw. 1 and the accused and that it was on account of the ill-feeling that the accused made the attempt on Pw. 1's life. Objection was taken by the appellant's counsel to this evidence and finding also.

(2.) THAT Pw. 1 sustained a cut on his right cheek on 5. 5. 1952 and that he was treated as an in-patient in the hospital from 5. 5. 1952 to 31. 5. 1952 for the injury caused to him by the cut and was unable during that period to follow his ordinary pursuits, are matters which were not disputed in this court. They are also sufficiently proved by the evidence of Pw. 3, the medical Officer who treated him. Pw. 3 swears that Pw. 1 was taken to the hospital at about 10. 30 p. m. on 5. 5. 1952 and that he had seen an antero-posterior incised wound right across the centre of the right cheek 2 3/4 " x 1/2" penetrating into the mouth and producing a vertical cut through the lateral aspect of the tongue 1/4' in length and 3/4 behind its tip. According to Pw. 3, this wound could be caused with a weapon like a chopper. Ext. C is the wound certificate issued by Pw. 3, and Ext. D is the letter he sent to the Inspector of Police on 31. 5. 1952 intimating the fact of Pw. 1's discharge from the hospital. Pw. 3 says further that on the day after Pw. 1's admission into the hospital it was also found that the crown of the molar tooth on his left jaw had been broken by the cut sustained by him. Both Pws. 1 and 3 say that Pw. 1 was under treatment as an in-patient in the hospital from 5. 5. 1952 to 31. 5. 1952 and that during this period Pw. 1 was also unable to follow his ordinary pursuits. The learned Sessions Judge has believed Pw. 3's evidence, and we also see no reason to disbelieve the same, especially as it was not questioned by the appellant's counsel in this court. Therefore there is no doubt that on 5. 5. 1952 Pw. 1 sustained a cut with a chopper or similar weapon on his right cheek, and that the cut had caused a long tearing injury which necessitated his treatment as an in-patient in the hospital for over 20 days.

(3.) IN Ext. H, John had said that when he was asking for toddy he heard a cry, and that on turning round he saw Pw. 1 with a bleeding injury on his cheek. According to him, one of the vendors in the shop brought a cloth and bandaged Pw. 1's cheek. But he professed ignorance of the identity of the vendor who bandaged Pw. 1's wound, and said that he did not see Pw. 6 in the shop on that day. John said further that Pw. 1 said at the time that it was the accused who had cut him and that on hearing this statement he (John) went out into the courtyard for catching the assailant. But he did not see and was not able to catch any one. Relying on john's statement in Ext. H that he did not see Pw. 6 in the shop on the day of the occurrence it was contended by the appellant's counsel that Pw. 6 was not in the shop at the time of the occurrence and that his evidence that he saw the accused coming into the shop and cutting Pw. 1 is false. It was also contended that Pws. 1, 2 and 7 could not have seen the assailant making his escape after cutting Pw. 1, that the assailant must have been either John or Mathan and not the accused, and that the failure of the prosecution to call Mathan as a witness was a suppression of material evidence.