IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1096 of 2003()
1. PRAKASHAN, 47 YEARS OLD, S/O.APPU,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY CIRCLE
... Respondent
For Petitioner :SRI.K.N.SASEENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :18/02/2010
O R D E R
V.K.MOHANAN, J.
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Crl.Appeal No.1096 of 2003
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Dated this the 18th day of February, 2010.
J U D G M E N T
The sole accused in S.C.No.38/2000 of the Additional
District And Sessions Judge (Ad hoc) Fast Track Court-I,
Manjeri is the appellant, as he is aggrieved by the order of
conviction and sentence imposed against him by the said court
u/s.307 Indian Penal Code.
2. The prosecution case is that at about 11 A.M. on
27.10.1991, the accused/appellant, due to enemity towards his
wife Chinnammu, for not giving money by selling the share of
his wife in the undivided property, had attempted to commit her
murder by stabbing with sickle and sustained serious injuries
on her vital part at the house where the victim was residing at
appropriate time. On the basis of the first information
statement, given by the victim, Crime NO.149/91 was
registered in the Parappanangadi police station, for the offence
punishable u/s.307 IPC.
3. After investigation, in the above crime, a final report
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was filed based upon which Sessions case No.38/00 was
instituted. On appearance of the accused, a formal charge was
framed against him which read over and explained to him and
he denied the said charge and pleaded not guilty.
Consequently, the trial was further proceeded during which the
prosecution adduced evidence consists of the oral evidence of
Pws.1 to 11 and the documentary evidence such as Exts.P1 to
P10. No witness was examined from the side of the defence
but one document namely, D1 was marked from the defence
side. Material objects such as M.O.s 1 to 4 were also produced
and identified. On the basis of the evidence and materials on
record, the Trial Court found that the accused is guilty of the
offence u/s.307 IPC and accordingly he is convicted for the said
offence and the accused/appellant is sentenced to undergo
rigorous imprisonment for 7 years and also sentenced to pay a
fine of Rs.5,000/- and the default sentence is fixed as simple
imprisonment for 2 years. It is also directed that if the fine
amount is realised the same shall be given to the defacto
complainant. It is the above judgment of the Trial Court and the
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conviction and sentence challenged in this appeal.
4. I have heard the learned counsel appearing for the
petitioner and also the learned Public Prosecutor.
5. The learned counsel submitted that the
appellant/accused is falsely dragged into the crime and the
investigation agency miserably failed to collect the best
evidence and materials connected with the offence and court
below failed to consider the above aspect of the case. The
learned counsel submitted that the place of occurrence is
surrounded by neighbours and the case of the prosecution is
that no person heard any cry and squeak of the victim, is
unbelievable. According to the learned counsel, the crime was
registered much after the incident and in the meanwhile PW1
implicated the appellants as a result of an after thought. It is
also the contention of the learned counsel that the Trial Court
miserably failed to examine the defence put forward by the
accused regarding the role of PW8 in the incident. Thus
according to the learned counsel, the prosecution has failed to
establish the case against the accused beyond reasonable
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doubt and therefore the order of conviction and sentence are
liable to be set aside.
6. The learned Public Prosecutor, resisting the contention
raised by the learned counsel for the appellant, submitted that
the evidence of PW1, the victim, is fully supported by the
medical evidence and hence the prosecution has established
the case against the appellant by adducing acceptable and
cogent evidence and therefore no interference of this court is
warranted, with the findings of the court below. According to
the learned Public Prosecutor, the prosecution had succeeded
in establishing the case against the accused, since the main
substantial evidence adduced through the oral testimony of
PW1, who is none other than the injured. According to the
prosecutor, the said evidence of PW1 is corroborated by the
medical evidence that too with the support of documentary
evidence such as Exts.P10 and P2 and other evidence. Thus
according to the learned Public Prosecutor, the judgment of the
Trial Court is absolutely correct and no interference is called off.
7. I have carefully considered the contentions raised by
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the learned counsel for the appellant as well as the learned
Public Prosecutor. The whole prosecution case is build up on
the basis of the First Information Statement furnished by PW1,
who is none other than the wife of the accused and the victim of
the incident. According to her, the accused used to create
trouble in the house and quarrel with the victim connected with
his demand for money and insisting the victim to sell her share
in the undivided property of her family. According to the victim
on the date of the incident that on 27.10.1991 at about 11
A.M.when the victim was engaged in the kitchen work, the
accused came in the house uttering that she will be killed and
the accused inflicted injuries on her body. The accused caught
hold off her neck and she fell down and then the accused
stabbed her with M.O.1 sickle and and as a result of that she
ward off the attempt with her hand and she sustained an injury
on the right thumb. According to PW1, she tried to escape from
the clutches of the accused and when she ran out of the
kitchen, she was chased and attacked with M.O.(2) stick and
she again fell down on the courtyard of the house. Thus
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according to PW1 when she was lying on the courtyard, the
accused again stabbed her with M.O.1 and thus she sustained
injury on her neck and hands. According to PW1, as a result of
the inflicted injuries and oozing out of blood, she became
unconscious and she regain conscious only after she was
admitted in the hospital. Thus the doctor examined her in the
hospital and she disclosed to the doctor the entire incident.
Thus on the basis of the intimation given from the hospital, PW5
the head constable, reached in the hospital and recorded
Ext.P1 First information statement from PW1. On the basis of
which PW6, the ASI, registered Ext.P4 FIR, for the offence
u/s.307 of Cr.P.C. When PW3, the doctor was examined,
Ext.P2 discharge certificate and Ext.P10 the wound certificate,
were marked.
8. The Trial Court has elaborately considered the medical
evidence that is available on record. Ext.P10 wound certificate
would show that the victim sustained multiple incised wounds
on the left side of her neck. Exts.P1 to P4 are grievous in
nature. In the judgment, the Trial Court has specifically
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recorded that while PW1 was in the box, she had removed her
sleeve and exposed a deep scar on her left hand and also
shown the scar on the left side of her neck. According to PW3,
all the injuries are grievous in nature and the same could be
caused with a sickle like M.O.1. The Trial Court has rightly
found that the accused/appellant inflicted injuries on the victim
with the intention to commit murder of the victim. The scene
mahazar prepared in the case would show that blood stains are
seen in the kitchen as well as in the courtyard of the house, the
places where the victim were attacked by the accused.
According to PW1, the accused approached her shouting that
she will be finished off and thereafter inflicted injuries on her
body by using M.O.1 sickle. From the evidences, it can be seen
that the injuries are sustained not as a result of a sudden
provocation or otherwise. But the record would shows that,
firstly the victim sustained the injuries on her body from the
kitchen of the house and injuries were inflicted by the accused
uttering that he would kill her. After sustaining the injuries at
the kitchen of the house, the victim ran away from there, to save
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her life. But the accused chased her and inflicted injuries
outside the house. The decisions of the apex court and various
other courts authoritatively pointed that, in order to find the
intention of the assailant, the body of the portion where the
injuries inflicted are one of the relevant considerations. In the
present case, the injuries were inflicted mainly on the left side of
the neck, which is a vital portion of the body and that too after
chasing the victim. Therefore, it can be safely concluded that
the accused have maintained an intention to commit murder of
the victim. The above facts have been substantiated through
the evidences of the oral testimony of the victim PW1, which is
corroborated by the medical evidence consists of the oral
testimony of PW3 and documentary evidence such as Ext.P2
discharge certificate, as well as Ext.P10 wound certificate.
Therefore, I find no illegality or irregularity with the finding
arrived by the court below. Therefore, I confirmed the finding of
the guilt of the appellant/accused and the conviction, recorded
by the Trial Court. The learned counsel for the appellant
submitted that the sentence imposed against the appellant is
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too harsh and excessive and a lenient approach may be taken
in the matter of sentence.
9. With respect to the sentence, I am of the view that
certain modifications can be effected. Admittedly, the victim
and the appellant are residing separately and they are leading
separate family life. Therefore according to me, 5 years of
imprisonment will be sufficient to meet the ends of justice.
Therefore the 7 years of imprisonment awarded by the Trial
Court can be reduced to 5 years of rigorous imprisonment and
the sentence of fine ordered by the Trial Court is confirmed but
the default sentence is reduced and refixed as 1 year simple
imprisonment.
In the result, this criminal appeal is disposed of confirming
the conviction of the appellant/accused for the offence u/s.307
of IPC as recorded by the Trial Court and accordingly the
appellant/accused is sentenced to undergo rigorous
imprisonment for 5 years instead of 7 years ordered by the Trial
Court and the sentence of fine ordered by the Trial Court is also
confirmed but the default sentence is reduced and refixed as
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one year simple imprisonment. If the fine amount is realised,
the same shall be given to the victim PW1. Set off u/s.428
Cr.P.C. is allowed.
Crl.Appeal is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/