High Court Kerala High Court

Prakashan vs State Of Kerala on 18 February, 2010

Kerala High Court
Prakashan vs State Of Kerala on 18 February, 2010
       

  

  

 
 
  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.
                     -------------------------------
                  Crl.Appeal No.1096 of 2003
                     -------------------------------
          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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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/