IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 CRL.A.No. 857 of 2008(B) --------------------------------- SC.143/2005 of THE ADDL. SESSIONS COURT ADHOC-I, MANJERI .................... APPELLANT(S): --------------------- ABID, S/O.MUHAMMEDKUTTY CONVICT NO.5337, CENTRAL PRISON, KANNUR BY ADV. GEORGE SEBASTIAN[STATE BRIEF] RESPONDENT(S): -------------------------- STATE OF KERALA PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.857 OF 2008 ------------------------------ Dated this the 9th day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge, Adhoc-I, Manjeri in S.C.No.143/2005. The accused was charge sheeted for the offences under Sections 394 and 307 of the I.P.C and was found guilty under Section 394 and sentenced to undergo R.I for a period of 5 years and to pay a fine of Rs.10,000/= and in default, to undergo R.I for one year under Section 394 of the I.P.C. 2. In Para 5 of the judgment, the learned Sessions Judge had corrected the offence under Section 307 as 308. I am not dwelling deep into that for the reason that no conviction is entered under that section. The accused who is in jail had sent the appeal and it has been numbered and as he has no lawyer to represent, Advocate George Sebastian was appointed as State brief to argue his case. 3. Learned counsel had taken me through the entire 2 CRL.A.NO.857/08 materials of the case. Prosecutor was also heard. The points that arise for determination in the appeal are (1) whether the accused has committed the offence as alleged by the prosecution under Section 394 of the I.P.C (2) Is there anything to interfere with the said decision and (3) whether in case of guilt, the punishment is excessive. 4. It is the case of the prosecution that on 18.12.2004 at about 9 p.m while PW2 was coming outside the bathroom, the accused caught hold of her in order to snatch her chain and when she resisted she was stabbed on the head which when swerved was hit on the ear resulting in injuries to her. At that time she made a hue and cry and her son CW3 came to the spot and there was a tussle between him and the accused and in that process the accused stabbed CW3 who when resisted with his hand got injured and it has also come out in evidence that during the tussle, the accused also sustained some injuries on his face. So, prosecution was initiated. 5. PW1 is the first informant who is the husband of PW2 3 CRL.A.NO.857/08 and owner of the house. PW1 had deposed before the court that while he was sitting, he heard the hue and cry of his wife, rushed to the spot at that time, he was able to see the tussle going on and ultimately the accused was over powered and tied. He had also spoken about the injury sustained by PW2 and Cw3, his son. 6. Pw2 is the wife of Pw1 on whom the alleged attack was made by the accused. It is her version that while she was returning after going to the bathroom the accused restrained her, closed her mouth and attempted to snatch her chain which when resisted she was stabbed which resulted in an injury on the side of her ear. She also had spoken about the tussle between CW3 and the accused and injury that has been caused to CW3 as well as to the accused. Her evidence has not been shattered in cross examination. 7. PW3 who had come to the scene of occurrence on telephonic information had found the accused being tied and thereafter told about the injury sustained by the persons. It is also his version that PW2 and CW3 were taken to the 4 CRL.A.NO.857/08 hospital and the accused was handed over to the police. 8. PW4 is the doctor who had examined both PW2 and CW3 and it is stated before the doctor that she had been stabbed by a thief and that she had sustained an incise wound on the ear and an abrasion on the right toe. CW3 sustained an injury on the palm. 9. PW4 has admitted that he was not shown the weapon but, he would depose that the injuries of this nature could be caused by using a weapon like MO1. PW5 is the person who had prepared a sketch and PW6 is the A.S.I of Police at that point of time who had recorded the statement of PW1 and registered the crime under the provisions of the Indian Penal Code. He had also stated that he had prepared Ext.P7 mahazer on the very next day i.e. on 19.12.2004 and had taken the knife which he identified as MO1. PW7 is the C.I of Police who had laid the charge. PW8 is the Deputy Superintendent who had taken part of the investigation. DW1 is the doctor who had examined the accused would depose that the accused had sustained a lacerated wound below the right hand and 5 CRL.A.NO.857/08 incised wound on the left shoulder. He had categorically stated that the victim did not give any name of the aggressor. He had also admitted that the injuries would be caused on a fall and coming into contact with a sharp object. So, the evidence available in this case would indicate that on the alleged date on 18.12.2004 the accused had entered into the compound and house of PW1 and had attempted to snatch the chain of PW2 and when she resisted, stabbed her on account of which she got injured and when her son came, he was also attacked which resulted in injuries to her son as well. 10. The learned counsel for the appellant would submit before me that there is something fishy about the recovery of MO1. It can be seen from the scene mahazer that knife was found in the house of PW1 from the next day and it had been taken and produced before the court on 7.1.2005. One cannot say there is inordinate delay and it has also to be remembered that immediately after the incident when the injured visited the hospital they had told the doctor that the 6 CRL.A.NO.857/08 injuries were caused on account of the use of a knife. So, from the evidence it is very clear that the accused had gone to the house of PW1, attempted to snatch the chain of PW2 and when she resisted had caused injuries to PW2 as well as CW3 and thereby attracted all the ingredients necessary to constitute the offence under Section 394 of the I.P.C. I do not find any ground to interfere with the decision of conviction under the said section. 11. Now referring to the sentence. It has to be stated that it is something which has been planned for the reason that along with two tamilians the accused had entered the compound of PW1 and asked a cup of water. Thereafter, late in the night he had made the attack. On considering the materials, I am inclined to reduce the sentence from 5 years to 4 years and also the default sentence from 1 year to 6 months. 12. In the result, the criminal appeal is disposed of as follows: 1. The finding of guilt under Section 394 of the IPC is sustained. 7 CRL.A.NO.857/08 2. The sentence is modified and the accused is sentenced to undergo R.I for a period of 4 years and to pay a fine of Rs.10,000/= on default of which, he had to undergo a further S.I for 6 months for the offence under Section 394 of the IPC. He is also entitled to set off as contemplated under Section 428 of the Cr.P.C. M.N. KRISHNAN, JUDGE cl 8 CRL.A.NO.857/08 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.857 OF 2008 ------------------------------ 9th day of July, 2009 JUDGMENT 9 CRL.A.NO.857/08