IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 CRL.A.No. 1225 of 2004 -------------------------------- SC.355/2001 OF SESSIONS COURT, MANJERI ......................................... APPELLANT/COMPLAINANT --------------------------------------- STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, NILAMBUR (CRIME NO.108/2000) OF EDAKKARA POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. NOBLE MATHEW RESPONDENTS: ACCUSED ---------------------------------------- CHENNAN, S/O.CHENNAN, AGED 52 YEARS, VENGATT, MOOCHIKUNNU, ADDIYANPARA, KURUMBALANGODE AMSOM. BY THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.T.SANKARAN, JJ. -------------------------------------- Crl.A.No.1225 OF 2004 ------------------------------------- Dated 14th January, 2008 JUDGMENT Koshy,J . State filed this appeal contending that the respondent who was accused of murdering his wife ought to have been convicted and sentenced for the offence punishable under section 302 of the Indian Penal Code instead of convicting him under section 304 Part II of the Indian Penal Code. Allegation of the prosecution was that on 17.3.2000 at 7 p.m. the accused inflicted injuries on his wife by hitting with bamboo stick and stone, in the coconut garden of Nalakath Beeran and his wife succumbed to the injuries while undergoing treatment in the Medical College Hospital, Kozhikode. 2. PW2, brother of the deceased, deposed that on the date of the incident he saw the accused and deceased at Perumbathur bazar and later deceased and accused were seen going to their house along the road. After some time, by around 8 p.m., PW2 and his wife proceeded to their house along the same way. They heard the cry of the deceased. They rushed to the spot and found the deceased sitting on the side of the way and the accused standing nearby holding the bamboo stick. PW2 saw the accused assaulting the deceased with that bamboo stick. He told Crl.A.1225/2004 2 the accused not to assault the deceased and the accused agreed for that. Thereafter, PW2 and his wife returned to their house. The next day afternoon, he learned that his sister's condition was worse. He went to the house of his elder brother (PW1) and both of them took the deceased to the Government Hospital, Nilambur and from there to the Medical College Hospital, Kozhikode. The deposition of PW2 is not believable as he saw accused beating deceased at 8 p.m. and even though his sister was being beaten up he came back to his house and only on the next day he went with his brother for taking her to the hospital. PW1 stated that the accused married the deceased and CW6 is their daughter. They have no house of their own and they were staying in the house of one Palan. He is not aware how the deceased sustained injuries. When he came to know about the injuries on the deceased from PW2 he also went with him and took the deceased to the hospital. PW3 is the neighbour. He saw the deceased lying in the thodu in the coconut garden of Bappu Haji at 7 a.m. on the next day of the alleged incident and accused was standing near her and the deceased told him that accused has assaulted her with stick and hit her with the stone. PW3 also identified the blood stained stone and bamboo sticks seized from the place of occurrence. PW4 is the daughter of the accused in his first wife. According to her, accused came to that house and wanted her to give water to the deceased. Crl.A.1225/2004 3 PW4 had not seen the incident. In 313 statement the accused denied the incident. Since accused and deceased were living together and they were seen together on the same day, the trial Judge found that the injuries were caused on the deceased by the accused himself. Since accused was very poor and was not able to engage a competent lawyer to represent him, a legal aid counsel was arranged by the State. Finding of the trial court is justified as while issuing Ext.P4 wound certificate, the injured stated that she was beaten by the accused at about 7a.m. on 18.3.2000. PW9, the Associated Professor and Deputy Police Surgeon conducted the postmortem and certified that the deceased died of pneumonia and peritonitis resulting from the injuries in the abdomen. According to him, the above is the consequences of the internal injuries of the abdomen suffered by the deceased. He also deposed that death might have been caused about 36 hours prior to the commencement of the postmortem examination. The injuries were inflicted on 17.3.2000 and she died on 20.3.2000. Operation was also conducted. Considering the totality of evidence, the trial court noticed that PWs 1 and 2 were not able to state the correct date or time, but, it was also found that they must have seen that the deceased was ill-treated by the accused and on that ground their evidence cannot be totally ignored. In any event, the deceased was brought to the hospital on 18.3.2000 and her statement to the Crl.A.1225/2004 4 doctor can be believed. After considering the medical evidence, the court found that the deceased died due to the injuries inflicted by the accused and this is a fit case for punishing the accused under section 304 part II of IPC and sentenced him to under go rigorous imprisonment for a period of six years. The contention of the appellant State that the accused did not offer proper explanation was considered by the trial court and found the accused guilty under section 304 Part II of the Indian Penal Code. It is settled law that in the case of acquittal, appellate court can interfere only if the findings are perverse or there is patent illegality. In this case evidence would show that conviction under section 304 Part II is justified and no interference is required in the the same. We also note that the appeal was filed with a delay of 694 days in 2004 and notice to the accused was not served so far. Taking all these facts together, we see no ground to interfere with the judgment of the trial court. The appeal is dismissed. J.B.KOSHY JUDGE K.T.SANKARAN JUDGE tks