IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 CRL.A.No. 1063 of 2008() ------------------------ SC.527/2006 of II ADDL.SESSIONS COURT, ERNAKULAM CP.82/2008 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVUR .................... APPELLANT(S): -------------- BIJU, S/O.KRISHNAN, C.NO.6583, CENTRAL PRISON, VIYYUR. BY ADV. K.P.SUJESH KUMAR[STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA PUBLIC PROSECUTOR SRI C.M.KAMMAPPU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 6/02/2009, THE COURT ON 26.2.2009, DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.1063 OF 2008 ---------------------------------------------- Dated,26th February, 2009. JUDGMENT The sole accused in S.C.No.527/200 on the file of the IInd Addl.Sessions Court, Ernakulam, is the appellant, who is undergoing imprisonment in pursuance of the impugned judgment dated 15.1.2008 by which he is convicted and sentenced under section 307 IPC. 2. The prosecution case is that on 30.1.2006 at about 9 a.m., when PW1 was walking along the gravel road, taking her children to school and on reaching near the Tharammel House bearing No.XVIII/563 of Kottuvally panchayat in front of the Ayyappan Temple, the accused attacked her by using a dangerous weapon like a chopper and inflicted cut injuries on her head with the intention to kill her and thereby caused grievous hurt while attempting to murder her and thus committed the offence punishable under section 307 of IPC. On the basis of the above incident, crime No.70/2006 in North Parur police station, was registered initially for the offences under sections 324 and 326 of IPC. On completing investigation, a final report was laid before the Judicial First Class Magistrate, North Parur for the offence under section 307 IPC CRL.A. 1063/08 -:2:- whereupon C.P.No.82/2006 was instituted. By order dated 31.10.2006, in the above proceedings, the learned Magistrate committed the case to the Sessions Court, Ernakulam which was subsequently made over to the trial court for disposal. As the accused was in custody and was not having a counsel of his choice, a lawyer was appointed by the District Legal Services Authority to defend him. After hearing both the prosecution as wall as the defence, a formal charge was framed under section 307 IPC which was read over and explained to the accused and he pleaded not guilty. Thereafter the prosecution adduced oral evidence consists of PWs 1 to 10 and documentary evidence such as Exts.P1 to P9 and material objects were also identified and marked as Mos 1 and 2. The accused denied the incriminating circumstances when he was examined under section 313 Cr.P.C. No evidence was adduced from the side of the defence and thus finally, the court below found that the accused is guilty of the charge levelled against him and accordingly, he is sentenced to undergo rigorous imprisonment for 7 years and also to pay a fine of Rs.25,000/- and in case of default to pay the fine amount, he is directed to undergo simple imprisonment for a further period of 6 months. It is the above finding and order of conviction and CRL.A. 1063/08 -:3:- sentence are challenged in this appeal. 3. As the appellant is undergoing imprisonment pursuant to the impugned judgment and the appeal is preferred from the jail, Advocate Sri K.P. Sujesh Kumar is appointed as State Brief. Thus I heard the learned counsel appearing for the appellant and also the leaned Public Prosecutor. 4. PW1 is the injured. When she was examined, she had deposed in terms of the prosecution case. Accused is the brother of her husband, PW8. According to PW1, when she was taking her children to the school, the accused attacked her with M.O.1 chopper and inflicted injuries. Immediately after the incident, she was taken to the hospital . When PW2, doctor was examined, he had deposed that he had attended PW1 and issued Ext.P2 wound certificate. PW3 is another doctor who issued Ext.P3 wound certificate. In the wound certificates viz., Exts.P2 and P3, on the basis of the information furnished by PW1, it was recorded that the series of wounds inflicted by the accused. PW5 and 7 are the eye witnesses to the incident. When they were examined they had categorically deposed in terms of the deposition of PW1. Though the prosecution cited and examined PW4 as eye witness, he turned hostile to the prosecution. PW6, Head Constable attached CRL.A. 1063/08 -:4:- to the North Parur police station met PW1 and recorded her F.I.Statement which is Ext.P1. On the basis of the Ext.P1 statement, PW10 registered Ext.P7 FIR. PW8 is the husband of PW1. PW9 is an attester to Ext.P6 scene mahazar dated 31.1.2006. Ext.P6 scene mahazar was prepared by PW10. On examining the scene of occurrence, PW10 seized MO1 chopper and MO2 peace of blood stained tile. Ext.P9 thondi list proved through PW10. Ext.P8 is the additional report filed by PW10 to furnish the correct address. Thus on the basis of the above evidence, the trial court found that the accused is guilty of the offence under section 307 of IPC and accordingly he is sentenced. 5. The learned counsel appearing for the appellant/accused submitted that though the prosecution has suggested the motive, no evidence is adduced to substantiate the same. It is also his case that while recording the nature of injuries sustained by PW1, there is a conflicting version given by the medical experts namely PWs 2 and 3. It is also the case of the learned counsel that, the prosecution miserably failed to recover the weapon alleged to have used by the accused so as to connect the accused with the alleged offence. It is further argued by the learned counsel that there are contradictions between the evidence of the so called eye CRL.A. 1063/08 -:5:- witnesses namely PWs 1, 5 and 7. The counsel also submitted that regarding the prosecution case itself, there is serious doubt, since even though MO1 chopper was seized on 31.1.2006, the same reached in the court only on 3.2.2006. So according to the learned counsel, there was no seizure or recovery of the weapon on the date as claimed by the prosecution but it was subsequently introduced and therefore the prosecution case itself is under shadow of doubt. Hence the learned counsel submitted that the finding and conviction arrived on by the trial court is liable to be set aside. 6. On the other hand, the learned Public Prosecutor submitted that the injured herself adduced oral evidence before the court below which can be safely accepted and acted upon. It is also submitted by the Public Prosecutor that the evidence of the injured, who is a lady, is fully supported by the evidence of other witnesses namely PW5 and 7 and that her versions are fully supported by the Ext.P1 F.I.Statement and also the medical evidence consists of the oral testimony of PWs 2 and 3 and also documentary evidence Exts.P2 and P3. It is also pointed out that the investigation was undertaken immediately after the registration of the crime on the basis of the Ext.P1 F.I.Statement of PW1 and CRL.A. 1063/08 -:6:- there is no defect in the investigation. Therefore, the learned Public Prosecutor submitted that the finding arrived on by the court below is fully supported by the evidence on record and no interference is warranted 7. I have carefully considered the contentions advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. The injured herself gave evidence as PW1 and her evidence is fully supported by her daughter PW7. Though PW7 was only at the age of 11, she had given a clearcut picture regarding the entire incident. PW5 deposed that he was on his way to meet one C.V.Raghavan and then he heard the cries of PW1 and her children. He had categorically stated that he had witnessed the accused attacking the injured with M.O.1. Though the other witnesses cited as occurrence witnesses turned hostile, PW1, PW7 and PW5 are competent witnesses and their evidences are reliable. Though they were cross-examined extensively, nothing was brought to discredit their version. The accused was caught hold of from the locality itself. The medical evidence also corroborates the evidence of PW1. According to the doctors, the injuries could be caused by M.O.1. It is borne out from the records and evidence that the accused was waiting for PW1 near the temple and he knows that CRL.A. 1063/08 -:7:- PW1 was likely to come there and therefore, he had possessed MO1 in his hand and was waiting for her. The accused inflicted 7 injuries on PW1 and most of those injuries were on the head of PW1 and the accused had selected the vital part of the victim to inflict the injuries. The trial court found that if PW5 and some other persons were not interfered, the accused would definitely have accomplished his intention to kill PW1. It is true that the investigating agency failed to obtain chemical examination report to identify the blood stains seen on M.O1. But PW1 and other witnesses identified the weapon and the accused who used the same inflicted injury on PW1 and hence, the absence of such chemical examination report in no way will affect the prosecution case. In this case, it is relevant to note that PWs 1, 7 and 8 are closely related to the accused and there is no reason for them to implicate the accused in the case. Therefore, I find no reason to interfere with the order of conviction and the same is confirmed. 8. With respect to the sentence, the learned counsel for the appellant submitted that he is only at the age of 25 and considering his social background, some leniency may be shown. Considering the entire factual situation involved in the case, and the submission of the learned counsel, I am of the view that some modification can CRL.A. 1063/08 -:8:- be made with respect to the substantial sentence. Thus, the sentence can be reduced from 7 years to 5 years. Accordingly, the accused is sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.25,000/- and the default sentence imposed by the court below is confirmed. In the result, the appeal is dismissed confirming the conviction but subject to the modification with respect to the substantial sentence as indicated above. V.K.MOHANAN, JUDGE kvm/- CRL.A. 1063/08 -:9:- V.K.MOHANAN, J. CRL.A. No.1063/2008. Judgment Dated:26.2.2009.