IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 CRL.A.No. 2092 of 2004() ------------------------ SC.350/2004 of ADDL. SESSIONS COURT (ADHOC-I), THALASSERY .................... APPELLANT/ACCUSED: ------------------- KOODATHIL RAJU, S/O. KANNAN, VENGALATTU VEEDU, MADATHINKAVU, KOTTIYOOR AMSOM, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT/COMPLAINANT: ------------------------- STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR, SRI.THOMAS JOHN AMBOOKEN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. =========================== Crl. A. No. 2092 of 2004 =========================== Dated this the 26th day of February, 2008 JUDGMENT Appellant is the accused in S.C No.350/04 on the file of the Additional Sessions Court (Adhoc-I), Thalassery. He challenges in this appeal the conviction and sentence passed against him by the Addl. Sessions Judge for offence under Section 304 Part-(ii) IPC. 2. Appellant was charge sheeted by the C.I. of Police, Peravoor in crime no.66/03 of Kelakam Police Station for having committed murder of his wife Thankamani at his house situated in Kottiyoor amsom at Madathinkavu by inflicting injuries on her using MO1 chopper and beating her with MO2 stick( ) and MO3 bamboo stick ( ). 3. On appearance of the appellant before the Sessions Court on committal of the case by the JFCM, Kuthuparamba vide committal proceedings 251/03, a counsel was appointed for him under the Legal Aid Scheme, as he had not engaged a lawyer of Crl. A. No. 2092/2004 -2- his choice. Thereafter preliminary arguments were heard; charge was framed against the appellant for offence under Section 302 IPC, was read over and explained to him and he was questioned by the court below. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the Court below. 4. On the side of the prosecution PWs.1 to 14 were examined, Exts.P1 to P12 were got marked and MO.1 to MO.11 series were got identified. On the defence side Ext.D1 was marked. On the prosecution closing their evidence, the appellant was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, his wife the deceased Thankamani got intoxicated on consuming alcohol and she attempted to assault him by chasing him with a chopper in her hand. This happened at night and only in the morning he came to know that she had fallen down in the shed adjacent to their house and breathed her last. However, he did not adduce any evidence in defence. 5. The court below considered the case in the light of the Crl. A. No. 2092/2004 -3- evidence adduced as aforesaid; found the appellant not guilty of offence under Section 302 of IPC and acquitted him of that offence but, convicted him for a lesser offence under Section 304 Part-(ii) of IPC; heard him on the question of sentence and sentenced him to undergo Rigorous Imprisonment for a term of 10 years under Section 304 Part-(ii) IPC and to pay a fine of Rs.1,000/- and in default to under go Rigorous Imprisonment for a further term of 10 months. Hence, this appeal by the aggrieved appellant. 6. Heard arguments of counsel for the appellant and the learned Public Prosecutor. 7. Counsel for the appellant submitted that there is sufficient evidence in the case to find the appellant guilty of offence punishable under Part-(ii) of Section 304 of IPC, as PW1, the daughter of the appellant himself, is an occurrence witness; that PW2 is an independent occurrence witness and PW3 also is a witness, who has seen part of the occurrence and the defence has not been able to punch holes in their evidence and therefore he is not canvassing for an acquittal but that the sentence awarded to the appellant may be reduced. He has taken Crl. A. No. 2092/2004 -4- me through the entire evidence in the case and on a reappraisal of the entire evidence, I am also of the view that the counsel is justified in his submission that an argument canvassing for acquittal of the appellant, in the circumstances of the case, is unfounded. 8. I have considered the question of reduction of sentence. Considering the evidence adduced in the case as also the submissions made by the learned counsel for the appellant, it is seen that though the court below has found the appellant not guilty of offence under Section 302 of Indian Penal Code , but found him guilty of offence punishable under Part (ii) of Section 304 I.P.C., has awarded him a sentence of Rigorous Imprisonment for a term of 10 years. Considering the nature of the injuries inflicted and taking into account the entire circumstances of the case, I am of the view that the sentence of Rigorous Imprisonment awarded for such a long term for offence under Section 304(ii) I.P.C. is unjustified and that the substantive term of rigorous imprisonment has to be reduced to a term of 5 years, limiting also the sentence in default of payment of fine to 3 months, which will be sufficient nemesis in law. Crl. A. No. 2092/2004 -5- 9. In the result, while confirming the conviction of the appellant for offence under Section 304 Part-(ii) of IPC, I modify and reduce the substantive term of rigorous imprisonment from ten years to five years and also reduce the term of imprisonment in default of payment of fine to rigorous imprisonment for three months in the place of rigorous imprisonment for ten months awarded by the court below. This appeal is, thus, allowed in part modifying and reducing the sentence. Forward the gist of this judgment to the appellant through the Superintendent of Central Prison, Kannur as it is submitted by the counsel for the appellant that the appellant is undergoing sentence in Central Prison, Kannur. K.P.BALACHANDRAN, JUDGE. jp