IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA WEDNESDAY, THE 22ND DAY OF DECEMBER 2010/1ST POUSHA, 1932 CRL.A.No. 1194 of 2010 ( ) -------------------------- SC.294/2009 of IV ADDL. SESSIONS COURT (ADHOC-II), THODUPUZHA APPELLANT(S): ------------ BHASKARAN,C.NO.5025, CENTRAL PRISON, THIRUVANNTHAPURAM-12. BY ADV. ADV.BINDU.M.A.(STATE BRIEF) RESPONDENT(S): -------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI. M.R. VENUGOPAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-12-2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 1194 of 2010 ----------------------------------------------- Dated 22nd December, 2010. JUDGMENT This appeal arises from the conviction and sentence passed against the appellant under Section 308 of Indian Penal Code ('IPC' for short) to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5000/- and in default of payment of fine to undergo simple imprisonment for a period of three months. 2. According to prosecution, accused and PW2 are husband and wife. They were living together in the accused's house. PW2's parents, along with the son born to PW2, in the earlier marriage had gone to the house of accused on 11.9.2003. They stayed in the house for two days and, on 13.9.2003, when the parents along with PW2's son were returning to their house, the accused and PW2 accompanied them. On the way, the accused took out a chopper from inside the shirt and cut PW2 on her neck twice. PW2 fell down on the spot. The accused ran away with the chopper. He attempted to commit culpable [Crl.Appeal No.1194/2010] 2 homicide and he was charge-sheeted for offence under Section 308 IPC. 3. To prove the prosecution case, PWs1 to 7 were examined and Exts.P1 to P4 were marked. The accused did not adduce any evidence on his side, but he pleaded innocence. 4. On an analysis of the evidence on record, the trial court found that accused was in the habit of manhandling PW2 daily. As per the doctor's evidence, PW2 sustained two incised wounds on the neck. Injury no.1 is on the vital part of the body. The trial court was of the view that accused inflicted fatal injuries on PW2, with such intention and under such circumstances that if by that act he had caused death and the would have been guilty of culpable homicide amounting to murder. Therefore, the appellant was convicted for offence under Section 308 of IPC. 5. The appellant was undefended and Smt. Bindu was appointed as State Brief. Heard both sides and perused the records. Learned counsel for the appellant argued that no independent witness is examined in this case. CW5 is an eyewitness to the occurrence but only interested version of PWs 1 and 2 is available. The weapon of offence, which is a chopper, is not seized in this case. There is contradiction between the [Crl.Appeal No.1194/2010] 3 evidence of PW3 and PW5, the Head Constable who had recorded the statement. 6. According to PW5, PW2 was not in a position to speak whereas PW3, the doctor said that PW2 was able to talk. F.I. Statement was recorded from PW1 on the premise that PW2 could not speak. It is also submitted that blood was seen at the scene of occurrence but it was not sent for chemical analysis. There is also contradiction in the evidence of PWs 1 and 2 regarding the incident which took place on the previous night of occurrence. 7. It is also pointed out that in Ext.P1 F.I. Statement, PW1 had no case that there was any quarrel in the house on the previous day, but while giving evidence in court, she stated that two days prior to the incident, the accused was quarreling. It is also submitted that the evidence of PW1 would show that the weapon was taken out from the shirt of PW2 and nobody could have seen accused carrying the weapon. 8. Learned Public Prosecutor submitted that there is clear and cogent evidence of PWs 1 and 2 regarding the incident. Accused had intention to kill PW2. Ever since marriage, he was doubting the fidelity of his wife, as revealed from the evidence of [Crl.Appeal No.1194/2010] 4 PWs 1 and 2. The nature of weapon used and the injuries sustained on PW2 would clearly show that the intention was to kill her. Therefore, there is no reason to interfere with the conviction and sentence, it is submitted. 9. To prove the occurrence PWs 1 and 2 were examined. They have given evidence more or less consistent with each other that the accused took a chopper and inflicted injury on the neck of PW2 while they were proceeding along the road. There is no major contradiction regarding the manner in which the incident happened. Both of them stated that PW1 started a journey to the house of PW2 from the house of accused and on he way PW2 was attacked by accused on the neck. 10. The above evidence is corroborated by the medical evidence. The doctor has noted incised injuries on the neck and he also stated that the allegation made to him was that husband had cut PW2 with a chopper. The injured was hospitalised at about 12.20 p.m. whereas the incident happened at about 11 a.m. There is nothing to disbelieve the evidence of PWs 1, 2 and 4 on the aspect which I have discussed. Their evidence will show that an incident happened in which the accused had cut PW2 with a chopper on her neck and she sustained injuries. The act of [Crl.Appeal No.1194/2010] 5 cutting is proved but the question is what was the intention or motive for commission of the offence. 11. On the facts and circumstances of the case, it is essential to consider whether the appellant had the intention to kill PW2 or whether he was voluntarily causing hurt to PW2 with dangerous weapon. To decide the question, the background of the case is to be looked into. It is seen from a reading of Ext.P1 and the evidence of PW1 that PW2 was married to the accused since three years prior to the incident. It is also revealed from the evidence that they were residing together in the same house even though there was quarrel between them. PW2 had come back to the house of PW1 and stayed there and she was taken away by the accused after mediation six months prior to the incident. They were living together for six months in the accused's house. 12. It is seen from the evidence of PWs 1 and 2 that PW2's parents and her child in the first marriage had come to the matrimonial house of PW2, two days prior to the date of incident and stayed there. It is also in the evidence of PW1 that had gone to the house of PW1 and brought her to that house in connection with Onam celebration. It also in evidence that since [Crl.Appeal No.1194/2010] 6 PW1's husband was not quite well physically, the accused and PW2 had gone to see them off while they returning from accused's house on the crucial day. 13. PW2 admitted that the accused used to look after the affairs in the house. There was no problem in the house on the previous day of occurrence. It has also come out from the evidence that the accused was in cordial term with PW2's son who was born in the earlier marriage. It is also brought out from the evidence of that the accused and PW2 had come to their house and stayed and he had taken PW2 to his house cordially. During Onam season also when they had stayed in PW2's house there was no problem between them. 14. PW2, the accused and PW2's son were loving each other, it is stated by PW1. All these facts stated above clearly indicate that there was cordial relationship between PW2 and accused prior to the incident. Though there was some quarrel between them on suspicion of PW2's fidelity, they were leading a normal marital like in the house of accused. He was looking after the affairs of the house when they were living together. He along with his wife went to see off PW1 and her husband etc. and nothing untoward happened immediately prior to the incident. [Crl.Appeal No.1194/2010] 7 15. It is seen from the evidence of PW1 that she tried to make a deviation from the statement given in Ext.P1 and made it appear that there was quarrel with PW2 on both days during which PW1 stayed in accused's house. This is contradicted by the evidence of PW2. PW1 also made it clear that because of the quarrel she brought PW2 to her house. But there is absolutely no such case for PW1 in Ext.P1 F.I. Statement. On the other hand, her case was that her husband was sick and PW2 and her husband had gone to see them. The accused had followed PW1 and her husband to see them off when they were returning after two days peaceful stay in the house of accused. 16. From the above facts, a doubt is cast as to what was the intention of the accused while committing the overt acts to commit such heinous crime against PW2. It is doubtful whether he had the intention to kill her. It appears from the evidence that accused was doubting the chastity of PW2. At the same time, from the evidence on record, it is clear that until the date of occurrence, accused was not involved in any criminal case. 17. As per F.I. Statement the couple were living together about 3 1/2 years. It is also seen from Ext.P1 that immediately prior to the occurrence for six months, they were living together. [Crl.Appeal No.1194/2010] 8 During this period, both the parents of PW2 and accused and his wife had gone to the house of each other and stayed in the respective house cordially. What happened all of a sudden for accused to develop an intention to kill is not clear from the evidence. 18. In the above circumstances, considering the various aspects, I am of view that the evidence adduced by the prosecution, it is not revealed any particular motive or whether intention of the accused was to commit culpable homicide of his wife or some other offence. However, for the mere reason that prosecution failed to prove motive, accused will not be entitled to any acquittal. At the same time, infliction of injury on the neck alone is not sufficient to hold that his intention was to commit culpable homicide, especially since the evidence in this case indicate that there was apparently no reason for appellant to act in the manner, as alleged by the prosecution. 19. Though it is proved that the appellant had committed the overt act it is doubtful whither he had the intention to commit homicide under Section 308 IPC. Therefore, I find that even though prosecution has established that the accused had voluntarily caused hurt to PW2, a doubt is cast on the intention or [Crl.Appeal No.1194/2010] 9 the knowledge as required under Section 308 IPC. The trial court has not looked into these aspects. 20. In this context, it is also relevant to note that PW2 gave evidence that her parents wanted her to get married for the third time. There is a suggestion from the side of the accused that it was only for this purpose that this case is falsely foisted against him. It has come out in evidence that PW2 was married thrice and prior to the marriage with the accused she had a child in the earlier wedlock. After the incident also, she married for the third time to another person, even without getting a divorce. 21. In this context, it is also relevant to note that weapon of offence was not recovered or produced before court. Therefore, regarding the exact nature of weapon used also there is no evidence. The opinion given by doctor was also not with reference to the weapon. In such circumstances, the offence committed by accused falls under Section 324 IPC and not under Section 308 IPC. In the result, the following order is passed: (1) The conviction and sentence passed against the appellant are modified. The appellant is [Crl.Appeal No.1194/2010] 10 convicted under Section 324 instead of Section 308 IPC. (2) The appellant is sentenced to undergo simple imprisonment for two years for offence under Section 324 IPC and to pay fine of Rs.5000/- in default of payment of fine to undergo simple imprisonment for a period of one month under Section 324 IPC. If fine is recovered, it shall be paid to PW2 as compensation. This appeal is partly allowed. Sd/- K. HEMA, JUDGE. Krs.