IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 CRL.A.No. 1512 of 2008() ------------------------ SC.51/2006 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM CRIME NO: 732/2001 OF CHANGANACHERRY POLICE STATION C.P.NO: 08/2002 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHANGANACHERRY .................... APPELLANT/ACCUSED ----------------------- RAJU CHACKO, C.NO.10-46, CENTRAL PRIS0N, THIRUVANANTHAPU8RAM. BY ADV. SRI.R.KRISHNA KUMAR. (STATE BRIEF) RESPONDENT/COMPLAINANT: ----------------------------------------------- STATE OF KERALOA, REPRESENTED BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SHRI. P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Criminal Appeal No. 1512 OF 2008 ------------------------------- Dated this the 4 th November , 2008. JUDGMENT This appeal arises out of the judgment dated 29.9.2006 in S.C.No: 51/2006, at the instance of the accused who is undergoing imprisonment for the offence under Section 308 IPC. He challenges the above conviction and sentence. 2. The prosecution case is that on 8.10.2001 at about 9 p.m, the accused stabbed on the chest of CW2 with a knife with the intention to cause his death and thereby the accused had committed the offence punishable under Section 308 IPC. On the basis of the said allegation Crime No: 732/2001 was registered in the Changanacherry Police Station. After completing the investigation the final report was filed before the Judicial First Class Magistrate of Changanacherry wherein C.P.8/2002 was instituted and by order dated 23.2.2006 the learned Magistrate committed the case to the Sessions Court. When the accused entered appearance on 29.5.2006 a contention was raised that he was mentally incapable to face the trial. Therefore, before framing the charge the doctor who treated the accused was summoned and he was examined. Through his deposition it is evident that the Crl. Appeal No: 1512/08 2 accused is mentally competent to face the trial. Thereafter a formal charge under Section 308 IPC was framed after hearing him and the charge was read over and explained to the accused to which he pleaded not guilty and accordingly P.Ws 1 to 9 were examined and Exts.P1 to P6 documents were marked from the side of the prosecution. MO1 knife is identified as the material object. On the side of the defence, P.Ws 1 and 2 were examined. Ext. X1 case sheet of accused was also marked. It is relevant to note that during the 313 statement the accused has stated that he removed fuse from the transformer as there was no supply to his house though the neighbouring house has got the power supply. The accused on seeing P.W.2 shouted that he was waiting for him, caught hold of the collar and stabbed on the left side of his chest with a knife. He carried the knife in his hand which was surrendered in the police as MO1. The knife did not struck on P.W.2, Surendran. After hearing all the rival contentions and pleadings finally the trial court found that the accused has committed the offence which charged against him and finally he was sentenced to undergo rigorous imprisonment Crl. Appeal No: 1512/08 3 for three years to pay a fine of Rs.5,000/- (Rupees five thousand only) in default he is directed to further undergo rigorous imprisonment for six months. It is also directed that if fine amount is paid, pay Rs.3000/- to P.W.2 for rectifying his grievance if any. Set off is allowed under Section 428 Cr.P.C. It is the above conviction and sentence that is challenged in this appeal. 3. The appeal is preferred from the jail and hence the same is prosecuted by appointing an Advocate as State Brief. 4. I have heard learned counsel for the appellant as well as the learned Public Prosecutor. 5. P.W.1 is the brother-in-law of the injured P.W.2. According to P.W.1 he learned that P.W.2 received injury from the accused at a place called Pottaseri at about 9 p.m. and thereby he was taken to the medical college hospital for treatment. P.W.1 has no direct knowledge regarding the incident but he is the person who alleged to have launched the F.I statement before P.W.7. Ext.P1 is the F.I statement given before P.W.1 and recorded by P.W.7. The injured in this case is P.W.2. According to him at 5th Kanni (Malayalam Crl. Appeal No: 1512/08 4 month) there was a dispute between himself and the accused and two-three days after the dispute on 8.10.2001 at about 9 p.m. The accused broken the fuse from the transformer situated at Pottasseri and he went to the spot for breaking up the fuse and at the time when he reached there the accused shouted at him stating that he was waiting for him, caught hold of his shirt and pushed him down and stabbed him with a knife. Thus he received injuries. According to him the people gathered there and took him to the hospital at Changanacherry and thereafter referred to medical college hospital. During the examination he identified MO1 knife used by the accused. He had stated that on identifying the accused at petromax light which was installed in the shop of one Thankappan which was situated near the place of occurrence. Though he was cross- examined nothing was brought out to discredit his version. In terms of the deposition made by P.W.2, the other witnesses viz., P.Ws.3 and 4 also deposed. P.W.5 is the attestor to the scene mahazar and P.W.6 is also another attestor to Ext.P4 seizure mahazar. Thus Exts.P3 and P4 are proved by P.Ws.5 and 6. As Crl. Appeal No: 1512/08 5 pointed out earlier Ext.P1 F.I statement of P.W.1 was recorded by P.W.7 who in turn registered Ext.P1(a) FIR. P.W.8 is the Sub Inspector of Police, Changanasserry who conducted investigation and finally laid the report. P.W.9 is the doctor attached to the medical college hospital and he identified the signature contained in Ext.P6 wound certificate. Ext.P4(a) is the disclosure statement of the accused which lead to the recovery of MO1 knife. P.W.8 Investigating Officer filed Ext.P5 report for amendment of the charge by inserting Section 308 instead of Section 324 IPC, which was initially shown in the FIR. Learned counsel for the appellant submitted that the evidence of P.Ws 1 to 3 cannot be believable and acceptable since they are closely related and they are interested in the prosecution. 6. I have closely perused the evidence of P.Ws 1 to 3 with caution and utmost care. Though the witnesses were cross- examined extensively their evidence remained unshaken and nothing is brought on record to discredit their version. Regarding the incident the accused also admitted the same to certain extent Crl. Appeal No: 1512/08 6 but he gave a distorted version. According to him he just picked the knife and he does not know whether it hit another person. It is also his case that the entire incident was occurred pursuant to a dispute regarding removal of the fuse from the transformer which was situated at the place of occurrence. 7. In the light of the above facts and circumstances I find no reason to interfere with the finding arrived at by the court below. The injured witness viz., P.W.2 and evidence adduced through the doctor P.W.9 and through Ext.P6 wound certificate would show that the injury sustained by P.W.2 was fatal and normal. Therefore, the finding of the court below that the accused had committed the offence under Section 308 IPC is absolutely correct and no interference is warranted. Learned counsel for the appellant submitted that the accused is an adict to alcohol and he himself has accounted the incident and therefore, a lenient view may be taken with regard to the sentence. 8. Considering the totality of the circumstances involved in the case, I am of the view that the imprisonment already undergone Crl. Appeal No: 1512/08 7 by the accused-appellant can be considered in fixing the sentence. Accordingly the sentence of rigorous imprisonment awarded by the trial court is reduced to two years from three years. I am not proposed to interfere with the fine amount fixed by the court below but the default sentence is reduced to one month from six months. Set off is allowed under Section 428 of Cr.P.C. Since the appellant- accused had already undergone imprisonment for 2 years 54 days, there will be a direction to release him forthwith, in case he is not required in any other case. In the result confirming the conviction ordered by the court below appeal is dismissed subject to the above modification of the sentence. V.K.MOHANAN JUDGE jj Crl. Appeal No: 1512/08 8 V.K.MOHANAN, J. -------------------------------- CRIMINAL APPEAL NO: 1512 OF 2008 -------------------------------- JUDGMENT DATED: 4TH NOVEMBER, 2008.