IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 CRL.A.No. 1096 of 2003() ---------------------------------- SC.38/2000 of 38/2000 OF THE ADDL.DISTRICT AND SESSIONS JUDGE (ADHOC) FAST TRACK COURT NO.1, MANJERI. .............................................................................. APPELLANT(S): ACCUSED ------------------------------------- PRAKASHAN, 47 YEARS OLD, S/O.APPU, PADNNAPURATH HOUSE, MOOZHIKKAL, KOZHIKODE. BY ADV. SRI.K.N.SASEENDRAN RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KERALA, REP. BY CIRCLE INSPECTOR OF POLICE, TIRURANGADI, (PARAPPANANGADI POLICE CRIME NO.149/91) BY ADV.SRI.P.R.JAYAKRISHNAN, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.Appeal No.1096 of 2003 ------------------------------- Dated this the 18th day of February, 2010. J U D G M E N T The sole accused in S.C.No.38/2000 of the Additional District And Sessions Judge (Ad hoc) Fast Track Court-I, Manjeri is the appellant, as he is aggrieved by the order of conviction and sentence imposed against him by the said court u/s.307 Indian Penal Code. 2. The prosecution case is that at about 11 A.M. on 27.10.1991, the accused/appellant, due to enemity towards his wife Chinnammu, for not giving money by selling the share of his wife in the undivided property, had attempted to commit her murder by stabbing with sickle and sustained serious injuries on her vital part at the house where the victim was residing at appropriate time. On the basis of the first information statement, given by the victim, Crime NO.149/91 was registered in the Parappanangadi police station, for the offence punishable u/s.307 IPC. 3. After investigation, in the above crime, a final report 2 was filed based upon which Sessions case No.38/00 was instituted. On appearance of the accused, a formal charge was framed against him which read over and explained to him and he denied the said charge and pleaded not guilty. Consequently, the trial was further proceeded during which the prosecution adduced evidence consists of the oral evidence of Pws.1 to 11 and the documentary evidence such as Exts.P1 to P10. No witness was examined from the side of the defence but one document namely, D1 was marked from the defence side. Material objects such as M.O.s 1 to 4 were also produced and identified. On the basis of the evidence and materials on record, the Trial Court found that the accused is guilty of the offence u/s.307 IPC and accordingly he is convicted for the said offence and the accused/appellant is sentenced to undergo rigorous imprisonment for 7 years and also sentenced to pay a fine of Rs.5,000/- and the default sentence is fixed as simple imprisonment for 2 years. It is also directed that if the fine amount is realised the same shall be given to the defacto complainant. It is the above judgment of the Trial Court and the 3 conviction and sentence challenged in this appeal. 4. I have heard the learned counsel appearing for the petitioner and also the learned Public Prosecutor. 5. The learned counsel submitted that the appellant/accused is falsely dragged into the crime and the investigation agency miserably failed to collect the best evidence and materials connected with the offence and court below failed to consider the above aspect of the case. The learned counsel submitted that the place of occurrence is surrounded by neighbours and the case of the prosecution is that no person heard any cry and squeak of the victim, is unbelievable. According to the learned counsel, the crime was registered much after the incident and in the meanwhile PW1 implicated the appellants as a result of an after thought. It is also the contention of the learned counsel that the Trial Court miserably failed to examine the defence put forward by the accused regarding the role of PW8 in the incident. Thus according to the learned counsel, the prosecution has failed to establish the case against the accused beyond reasonable 4 doubt and therefore the order of conviction and sentence are liable to be set aside. 6. The learned Public Prosecutor, resisting the contention raised by the learned counsel for the appellant, submitted that the evidence of PW1, the victim, is fully supported by the medical evidence and hence the prosecution has established the case against the appellant by adducing acceptable and cogent evidence and therefore no interference of this court is warranted, with the findings of the court below. According to the learned Public Prosecutor, the prosecution had succeeded in establishing the case against the accused, since the main substantial evidence adduced through the oral testimony of PW1, who is none other than the injured. According to the prosecutor, the said evidence of PW1 is corroborated by the medical evidence that too with the support of documentary evidence such as Exts.P10 and P2 and other evidence. Thus according to the learned Public Prosecutor, the judgment of the Trial Court is absolutely correct and no interference is called off. 7. I have carefully considered the contentions raised by 5 the learned counsel for the appellant as well as the learned Public Prosecutor. The whole prosecution case is build up on the basis of the First Information Statement furnished by PW1, who is none other than the wife of the accused and the victim of the incident. According to her, the accused used to create trouble in the house and quarrel with the victim connected with his demand for money and insisting the victim to sell her share in the undivided property of her family. According to the victim on the date of the incident that on 27.10.1991 at about 11 A.M.when the victim was engaged in the kitchen work, the accused came in the house uttering that she will be killed and the accused inflicted injuries on her body. The accused caught hold off her neck and she fell down and then the accused stabbed her with M.O.1 sickle and and as a result of that she ward off the attempt with her hand and she sustained an injury on the right thumb. According to PW1, she tried to escape from the clutches of the accused and when she ran out of the kitchen, she was chased and attacked with M.O.(2) stick and she again fell down on the courtyard of the house. Thus 6 according to PW1 when she was lying on the courtyard, the accused again stabbed her with M.O.1 and thus she sustained injury on her neck and hands. According to PW1, as a result of the inflicted injuries and oozing out of blood, she became unconscious and she regain conscious only after she was admitted in the hospital. Thus the doctor examined her in the hospital and she disclosed to the doctor the entire incident. Thus on the basis of the intimation given from the hospital, PW5 the head constable, reached in the hospital and recorded Ext.P1 First information statement from PW1. On the basis of which PW6, the ASI, registered Ext.P4 FIR, for the offence u/s.307 of Cr.P.C. When PW3, the doctor was examined, Ext.P2 discharge certificate and Ext.P10 the wound certificate, were marked. 8. The Trial Court has elaborately considered the medical evidence that is available on record. Ext.P10 wound certificate would show that the victim sustained multiple incised wounds on the left side of her neck. Exts.P1 to P4 are grievous in nature. In the judgment, the Trial Court has specifically 7 recorded that while PW1 was in the box, she had removed her sleeve and exposed a deep scar on her left hand and also shown the scar on the left side of her neck. According to PW3, all the injuries are grievous in nature and the same could be caused with a sickle like M.O.1. The Trial Court has rightly found that the accused/appellant inflicted injuries on the victim with the intention to commit murder of the victim. The scene mahazar prepared in the case would show that blood stains are seen in the kitchen as well as in the courtyard of the house, the places where the victim were attacked by the accused. According to PW1, the accused approached her shouting that she will be finished off and thereafter inflicted injuries on her body by using M.O.1 sickle. From the evidences, it can be seen that the injuries are sustained not as a result of a sudden provocation or otherwise. But the record would shows that, firstly the victim sustained the injuries on her body from the kitchen of the house and injuries were inflicted by the accused uttering that he would kill her. After sustaining the injuries at the kitchen of the house, the victim ran away from there, to save 8 her life. But the accused chased her and inflicted injuries outside the house. The decisions of the apex court and various other courts authoritatively pointed that, in order to find the intention of the assailant, the body of the portion where the injuries inflicted are one of the relevant considerations. In the present case, the injuries were inflicted mainly on the left side of the neck, which is a vital portion of the body and that too after chasing the victim. Therefore, it can be safely concluded that the accused have maintained an intention to commit murder of the victim. The above facts have been substantiated through the evidences of the oral testimony of the victim PW1, which is corroborated by the medical evidence consists of the oral testimony of PW3 and documentary evidence such as Ext.P2 discharge certificate, as well as Ext.P10 wound certificate. Therefore, I find no illegality or irregularity with the finding arrived by the court below. Therefore, I confirmed the finding of the guilt of the appellant/accused and the conviction, recorded by the Trial Court. The learned counsel for the appellant submitted that the sentence imposed against the appellant is 9 too harsh and excessive and a lenient approach may be taken in the matter of sentence. 9. With respect to the sentence, I am of the view that certain modifications can be effected. Admittedly, the victim and the appellant are residing separately and they are leading separate family life. Therefore according to me, 5 years of imprisonment will be sufficient to meet the ends of justice. Therefore the 7 years of imprisonment awarded by the Trial Court can be reduced to 5 years of rigorous imprisonment and the sentence of fine ordered by the Trial Court is confirmed but the default sentence is reduced and refixed as 1 year simple imprisonment. In the result, this criminal appeal is disposed of confirming the conviction of the appellant/accused for the offence u/s.307 of IPC as recorded by the Trial Court and accordingly the appellant/accused is sentenced to undergo rigorous imprisonment for 5 years instead of 7 years ordered by the Trial Court and the sentence of fine ordered by the Trial Court is also confirmed but the default sentence is reduced and refixed as 10 one year simple imprisonment. If the fine amount is realised, the same shall be given to the victim PW1. Set off u/s.428 Cr.P.C. is allowed. Crl.Appeal is disposed of accordingly. V.K.MOHANAN, Judge. ami/