IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 CRL.A.No. 2120 of 2010(D) ------------------------- SC.899/2007 of ADDL. DISTRICT & SESSIONS COURT (ADHOC I), KOLLAM .................... APPELLANT(S): ------------------------- BIJU, C.NO.5364, CENTRAL PRISON, THIRUVANANTHAPURAM-12. BY ADVS. SRI.SAJEEV.T.P., SMT.K.RAJANI, SRI.R.V.SUJIT KUMAR. RESPONDENT(S): --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LALIZA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/112011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl.A.No.2120 of 2010 ------------------------------- Dated this the 21st day of November, 2011. J U D G M E N T The appellant is the sole accused in S.C.No.899 of 2007 of the court of Additional District and Sessions Judge (Ad hoc)-I, Kollam. In this appeal he challenges his conviction and sentence imposed on him under Section 307 of IPC vide judgment dated 16.8.2010 in the above sessions case. 2. The case of the prosecution is that, the accused is the husband of PW2 and he attempted to commit murder of his wife. According to the prosecution, as the accused was suspicious of the fidelity of PW2 and out of that enemity, the accused attempted to commit murder his own wife in pursuance to a quarrel took up with the injured at 4 p.m. on 8.2.2004, from their house in Ambedkar colony. According to the prosecution, the accused caused hurt to PW2, who tried to escape from the house but the accused 2 Crl.A.No.2120 of 2010 chased her with a knife and from the courtyard of one Podichi's house, the accused threatened her to kill and attempted to stab on the neck of PW2 but she turned her face, consequently the stab struck just below the right eye of PW2, causing grievous injury to her. Thus according to the prosecution, the accused has committed the offence punishable under Section 307 of IPC. On the basis of the above allegation, Crime No.51 of 2004 was registered in the Ezhukon police station for the said offence. 3. On completing the investigation, report was filed in the court of Judicial First Class Magistrate-I, Kottarakkara, which was taken on file as C.P.No.391 of 2005. Consequently, in the above committal proceedings, by order dated 16.1.2006, the learned Magistrate committed the case to the Sessions court, Kollam, where on receiving the case, assigned the sessions case numbered as S.C.No.899 of 2007 and consequently, the case is made over to the present trial court for disposal. Thus when the accused appeared, after hearing the prosecution as well as the 3 Crl.A.No.2120 of 2010 defence, a formal charge was framed against the accused for the offence punishable under Section 307 of IPC, which when read over and explained to the accused, he denied the charge and pleaded not guilty. Consequently, the prosecution adduced its evidence consists of the testimony of Pws.1 to 12 and the documentary evidence of Exts.P1 to P17. M.O.s.1 to 4 were identified and marked as material objects. No evidence either oral or documentary produced from the side of the defence. Towards the conclusion of the trial, the learned Judge of the trial court has found that, the evidence of Pws.2 and 3 it is categorically proved that the accused inflicted injury on the neck of PW2, eventhough the stab struck below the right eye and the knife had penetrated into the base of the skull endangering the life of PW2 and it is further revealed that the accused threatened to kill PW2 and inflicted such an injury and therefore the accused had intention to murder PW2. Thus according to the learned Judge of the trial court, the prosecution case is established and the accused has attempted to commit 4 Crl.A.No.2120 of 2010 murder of his wife. On the basis of the above findings, the learned Judge found that the accused is guilty under Section 307 of IPC and accordingly he is convicted thereunder. On such conviction, the accused is sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs.25,000/- and in default he is directed to undergo simple imprisonment for 6 months. Set off is allowed under Section 428 of Cr.P.C. It is also ordered that on realisation of the fine amount, Rs.20,000/- shall be paid to PW2 by way of compensation. It is the above findings, order of conviction and sentence and direction to pay compensation are challenged in this appeal. 4. As the appellant is undergoing imprisonment in pursuance to the impugned judgment, he preferred the present appeal from jail and on receiving such jail appeal, as directed by this Court the Registry has appointed Adv.Smt.Neema T.V., from the panel of State Brief to prosecute the matter for and on behalf of the appellant. Subsequently, Adv.Sri.Sajeev T.P., entered appearance for 5 Crl.A.No.2120 of 2010 and on behalf of the appellant and thus I have heard Sri.Sajeev T.P., learned counsel for the appellant and Smt.Laliza learned Public Prosecutor for the State. 5. Out of the witnesses of the prosecution, which I indicated earlier, in order to prove the prosecution allegation against the accused, the prosecution mainly depends upon the evidence of Pws.2 and 3 among which PW2 is the victim and PW3 is her mother. When PW2 was examined, she had deposed that the incident has taken place at 4 p.m. on 8.2.2004 in the courtyard of the house of one Podichi, which is near to the house of PW2. According to PW2, she had gone to the house of PW4, one Muralidharan, for watching T.V. along with her mother and at that time, the accused came there and asked her to accompany her to their house. According to PW2, it is her further case that when she reached in their house, the accused beat her suspecting her fidelity and he pulled her nighty and torn the same. According to PW2, she went inside the house and changed her nighty and when she tried 6 Crl.A.No.2120 of 2010 to escape, the accused chased her with a knife which was kept in the kitchen and the accused stabbed her aiming at her neck but she turned her face and consequently the stab struck below her right eye. According to PW2, her mother and sister tried to push away the accused but the accused pushed away her mother and stabbed her. According to PW2, the entire blade portion of the knife pears into her body which was struck there and what was visible is only the handle portion of the knife outside. According to her, firstly he was taken to District Hospital, Kollam, from where she was later taken to Medical College Hospital, Thiruvananthapuram and the knife was removed after surgery. She had identified M.O.1 series, the knife, which was removed from her body and M.O.2 which is the blood stained nighty worn by her. During the cross examination she had admitted that, she was questioned by the police from the hospital and her statement was recorded. According to PW2, she was taken to the hospital by her neighbours. It is relevant to note that during the cross 7 Crl.A.No.2120 of 2010 examination she had categorically deposed that, she was in love with the accused and they started to reside as man and wife, eventhough there was no formal legal marriage and they are having two children in the said cohabitation. Though the defence attempts to illustrate some facts in support of the version of the defence, that she went to the house of one Valsala and quarreled with her alleging illicit relationship of said Valsala with the accused, the same are denied by her. She also denied the suggestion that, she chases said Valsala with a knife and she fell down with the knife and sustained injury. 6. PW3, who is none other than the mother of PW2, is another material witness examined by the prosecution to prove its case against the accused. When PW3 was examined, she had deposed that it was she who informed the police about the incident based upon a statement lodged in the police station and Ext.P2 is the F.I. statement given by PW3. When PW3 was examined in the court, she had deposed in terms of what deposed by PW2 before the court. 8 Crl.A.No.2120 of 2010 She has deposed that, PW2 is her daughter and accused is the husband of her daughter-PW2. According to her, the incident occurred at 3 p.m. on 8.2.2004. She had deposed that she had gone to the house of one Murali for watching T.V. along with PW2, her daughter and the accused came to the house of Murali and called PW2 to accompany the accused to their house. According to PW3, thereafter she had heard a hue and cry from the house of PW2 and PW3 rushed to their house and then she saw PW2 with a torn nighty. Thereafter, PW3 had stated the sequence of occurrence as stated by PW2. During the cross examination, the defence had succeeded in bringing out that PW3 was questioned by the police twice and the police had come to the place of occurrence at 4 p.m. on the date of the incident. She had stated that the police had not recorded her statement at that time. Even during the time of cross examination, PW3 deposed that the incident was occurred in the courtyard of Podichi's house. She had also admitted that in the Harijan colony there are nearly 100 9 Crl.A.No.2120 of 2010 houses. On suggestive questions from the side of the defence in terms of the defence version, are denied by PW3. 7. Beside Pws.2 and 3, the prosecution has examined other witnesses. I shall refer the evidence of those witnesses. PW1 is a neighbour to PW2. But when he was examined he had deposed that he did not see PW2 with the injuries and thus he was declared as hostile and the prosecution has got marked Ext.P1, P1(a) and P1(b) through PW1. PW4 is the adjacent house owner where Pws.2 and 3 went for watching T.V. PW4 also has turned hostile towards the prosecution. PW5 is an attestor to Ext.P4 mahazar under which the cloth of accused were seized. PW6, though he was not cited as an eye witness during his examination, he had claimed that he saw PW2 with the injuries and the incident. Actually, PW6 is an attestor to Ext.P5 seizure mahazar. PW7 is the Head nurse of Thiruvananthapuram Medical College Hospital who handed over M.O.1 to PW10, which was seized as per Ext.P5 mahazar. According to her, the knife was given to the 10 Crl.A.No.2120 of 2010 police custody from the operation theater. PW8 is the Village officer who prepared Ext.P6 site plan. During his examination, he had stated that the scale is not mentioned in the plan. PW9 is the then Sub Inspector of police, Ezhukon police station, who recorded Ext.P2 F.I. statement of PW3 and registered Ext.P7 F.I.R. During the cross examination of PW9, the defence had brought on record that the accused was kept in surveillance. PW10 is the Circle Inspector of police who undertook the investigation. According to PW10, he prepared Ext.P8 scene mahazar and arrested the accused and prepared Ext.P4 mahazar when the dress of the accused was seized. He had also identified M.O.3 dothi. It was PW10 who prepared Ext.P9 report, giving address of the accused. Ext.P10 remand application was also proved through PW10. PW10 has also prepared Ext.P12 forwarding note and Ext.P13 mahazar. Beside the above findings, the prosecution has also produced medical evidence in support of its allegation against the accused. PW12 is the doctor who treated PW2 in the Medical College 11 Crl.A.No.2120 of 2010 Hospital, Thiruvananthapuram. Ext.P15 casualty card, Ext.P16 treatment certificate and Ext.P17 case records are marked through PW12. According to PW12, PW2 was brought to the hospital with a knife penetrated into her face below the right eye and the tip of the knife was seen at the level of artery, carrying blood to the brain. According to PW12, through a surgery the knife was removed. PW12 had also deposed that the knife had penetrated into the base of the skull touching the artery and it was very difficult to remove the knife so the same was broken into two pieces. These are the evidences formed basis for the findings of the learned Judge of the trial court for convicting the accused for the offence punishable under Section 307 of IPC, which is under challenge in this appeal. 8. Sri.Sajeev T.P., learned counsel for the appellant vehemently submitted that the findings and the conviction recorded by the learned Judge of the trial court against the appellant are legally and factually unsustainable and the same are liable to be set aside. In support of the above 12 Crl.A.No.2120 of 2010 submission it is pointed out that, the prosecution has miserably failed to prove the case beyond reasonable doubt. According to the learned counsel to prove the incident, the prosecution has cited and examined four witnesses and out of them two independent witnesses turned hostile and the prosecution case was supported only by the interested witnesses, namely Pws.2 and 3. It is also pointed out that though PW6 is not an eye witness, whose '161 statement' was not recorded, he had also claimed and deposed that he had witnessed the incident and the prosecution has attempted to introduce artificial evidence so as to canvas the conviction against the accused and the above facts render the prosecution case as a suspicious one. It is the further submission of the learned counsel that the accused is falsely implicated in the present crime and in order to substantiate such police case, the prosecution has suppressed some material evidence and facts from the screening of the trial court. After inviting my attention to the evidence of PW3, it is pointed out by the learned 13 Crl.A.No.2120 of 2010 counsel that even according to PW3, police personnels reached at the place of occurrence on the alleged date of incident but the F.I. statement allegedly recorded only on 9.2.2004 at 8 a.m. Thus according to the learned counsel, even before recording Ext.P2 F.I. statement and Ext.P7 F.I.R., the police has got information about the alleged incident and those facts were deliberately suppressed. It is also pointed out by the learned counsel that as per the evidence of PW9, the Sub Inspector of police, Ezhukon police station, who recorded Ext.P2 statement, on the basis of which Ext.P7 F.I.R. was registered, it is crystal clear that the accused was taken into custody before recording the arrest of the accused as per the prosecution records. The fact is also admitted by PW10, the Investigating Officer. Thus according to the learned counsel, the prosecution case is not free from doubt. It is also pointed out by the learned counsel that even according to PW2, the accused was looking after his family properly and he is concerned and affectionate to the issues of the children. It is also the 14 Crl.A.No.2120 of 2010 submission of the learned counsel that even according to PW2, the quarrel between herself and the accused continued for more than half an hour but the prosecution has not cited and examined any independent witness and the two witnesses already examined, turned hostile. According to the learned counsel, the incident was not taken place as deposed by the prosecution witnesses before the court, especially when the signed statement of PW3, ie., Ext.P2, says regarding the incident in other way. Thus according to the learned counsel, the prosecution has miserably failed to prove the case beyond reasonable doubt and therefore the appellant is entitled to get a free acquittal. 9. On the other hand, the learned Public Prosecutor submitted that eventhough there is slight contradiction or variation in the evidence of the prosecution witnesses regarding the place of occurrence and sequence of the incident, the evidence of PW2, who is the victim, remained intact about the injury that sustained by herself and the 15 Crl.A.No.2120 of 2010 evidence of PW2 is further corroborated by the medical evidence consists of the deposition of PW12 and Exts.P5 to P17 documents. Thus according to the learned Public Prosecutor, when the evidence of prosecution regarding the injury sustained by PW2 is intact and when the prosecution case has proved the same, the findings of the court below is correct and no interference is warranted. According to the learned Public Prosecutor, though PW3 had gave Ext.P2 statement in a different manner, the court need not go into the details of the same when PW3 has deposed in the court in tune with the evidence of PW2 and therefore the minor improvements or additions that seen in the evidence of PW3 are not sufficient to over look other evidence of prosecution and to disbelieve the entire case of the prosecution. After inviting my attention to the medical evidence, the learned Public Prosecutor submitted that the accused has inflicted such a serious injury which was capable to take the life of PW2, the victim. Thus according to the learned Public Prosecutor, the findings of the court below are not liable to 16 Crl.A.No.2120 of 2010 be interfere with and the appeal is to be dismissed. 10. I have carefully considered the arguments advanced by the counsel for the appellant and the learned Public Prosecutor. I have already referred to the evidence and materials on record. In the light of the rival contentions advanced by the counsel for the appellant as well as the learned Public Prosecutor and in the light of the evidence and materials on record, the point that come up for consideration is whether the findings of the trial court that, the prosecution has succeeded in establishing its allegation against the accused is correct and justified. On a careful scrutiny of the prosecution allegation and the documents relied on by it, it can be seen that the very basis of the prosecution case is sticked upon Ext.P2 F.I. statement and Ext.P7 F.I.R. As per Ext.P2 F.I. statement given by PW3, her version is that, on 8.2.2004 in the evening, the accused after attending his relative's ring- exchange function, reached the house by 4 o'clock and called PW2 and the children and while the conversation was 17 Crl.A.No.2120 of 2010 going on, a quarrel was taken place and the accused torned the maxie of Sindhu, PW2, and then she entered into the house and after changing the torn maxie, she came out to the eastern courtyard of the house and according to PW3, on seeing the same, the accused went to the kitchen and came with a steel knife and approached Sindhu saying that 'she will be finished off ' and on seeing that, herself and Bindhu (sister of Sindhu-PW2) went behind the accused. By that time, the accused prevented Sindhu by holding on her maxie and thereafter inflicted a stab injury, aiming at the neck of PW2 but she turned her face, as a result of which the knife struck just below the right eye of PW2 and according to PW3, on seeing it, herself and the said Bindhu cried loudly and peoples gathered there and at that time the accused vacated the premises and then, PW2 was removed to the hospital. Thus as per Ext.P2, according to PW3, the accused came to their house by 4 o' clock at 8.2.2004 and thereafter he threatened her and started to quarrel and in pursuance to such quarrel, the accused inflicted injury on 18 Crl.A.No.2120 of 2010 PW2 when she stepped down to the eastern courtyard of their house after changing her torn maxie. But when PW3 was examined in the court, she had deposed an entirely new case giving a bye to what has stated in Ext.P2 F.I. statement. Ext.P2 F.I. statement is a signed statement of PW3 and the contends of Ext.P2 remains as such and no explanation is sought for by the prosecution when PW3 was examined in the court and deposed against Ext.P2. The evidence of PW9 also shows that the contends of Ext.P1 is given by PW3 voluntarily. When a comparison of the contention of PW2 with the deposition of PW3 in the court, it can be seen that, as per the deposition of PW3, regarding the place of occurrence from where the incident started itself is not the same mentioned in Ext.P2. In Ext.P2, PW3 has no case that she had gone to the house of PW4 along with PW2 to watch the T.V. As per the deposition of PW3, when she was watching the T.V. along with PW2, the accused came there and called PW2-her daughter and thereafter both of them went to the house of PW2 and 19 Crl.A.No.2120 of 2010 thereafter she heard hue and cry following which she went to their house and saw the incident. As per the deposition of PW3, the incident was taken place at the courtyard of Podichi's house but no such house is mentioned in Ext.P2 F.I. statement. So, Ext.P2 F.I. statement given by PW3 and the deposition of PW3 in the court, are entirely different on material particulars, especially, regarding the beginning of the incident, the place of occurrence, the presence of Pws.2 and 3 etc. According to me, in the above backdrop, the submission of the learned counsel for the appellant seemed to be important, that the prosecution case is highly suspicious. Thus it can be seen that, though prosecution has examined four witnesses to prove the incident, two independent witnesses among them turned hostile and the remaining two witnesses namely Pws.2 and 3 according to me, the evidence of PW3 cannot be believed, since she gave an entirely different version in the court resiling from Ext.P2 F.I. statement. Prosecution has made no attempt to sought clarification or explanation for not mentioning what 20 Crl.A.No.2120 of 2010 all stated in her deposition before the court with respect to the material points which I indicated earlier. Hence the evidence of PW3, according to me is not trustworthy and reliable. Therefore, the question to be considered is whether the appellant can be convicted for such a serious offences solely upon the evidence of the victim-PW2. It is true that when PW2 was examined in the court, she had deposed in terms of the present allegation of the prosecution. But it is relevant to note that when PW2 had examined in the court, she had deposed that though there was no formal marriage between PW2 and the accused they were residing as man and wife and two children are there in that cohabitation. She had also deposed that the accused was looking after the family and he was very keenly interested in the welfare of the children. It is also came out in evidence that even according to Pws.2 and 3, there was a verbal quarrel which resulted in the so called incident. Under the above factual background, I am unable to hold that the accused has maintained an intention to commit the 21 Crl.A.No.2120 of 2010 murder of PW2, though PW2 sustained serious injury. 11. Even otherwise, according to me, the prosecution case is not free of doubt. When PW3 was examined, she had deposed that on the date of incident itself the police came to the spot but her statement was not recorded. As per the present version of prosecution, the police came to the place of incident only after PW3 lodged Ext.P2 F.I. statement and the investigation started from the stage when Ext.P2 F.I. statement was given. But PW9, the Sub Inspector of police, who recorded Ext.P2 categorically stated before the court that the accused was under surveillance from 8.2.2004 onwards. PW10, the Circle Inspector of police, who undertook the investigation has also deposed before the court that he formally recorded the arrest of the accused from the police station, since the accused was under surveillance. There is no evidence or materials to show as to when the accused was taken and