Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL MONDAY,THE 29TH DAY OF JULY 2013 7TH SRAVANA, 1935 Crl.Rev.Pet.No. 1860 of 2010 ( ) ------------------------------------------- AGAINST THE JUDGMENT IN CRA NO. 162/2007 of II ADDITIONAL SESSIONS COURT, KOLLAM DATED 22 03-2010 AGAINST THE JUDGMENT IN SC NO.724/2002 of ADDITIONAL ASSISTANT SESSIONS COURT, KOLLAM DATED 06 03-2007 REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------------- RAJAN,S/O.MADHAVAN CHETTIYAR, ATTUCHIRA, THEKKEVAYALIL VEEDU, ULIYAKOVIL CHERI, KOLLAM VILLAGE. BY ADV. SRI.BIJU .C. ABRAHAM RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOLLAM EAST POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MJL K.HARILAL,J.
-------------------- Crl.R.P.No.1860 OF 201.--------------------------------- Dated this the 29th day of July, 2013 ORDER The Revision Petitioner is the accused in Sessions Case No.724 of 2002 on the files of Additional Assistant Sessions Judge, Kollam. He was prosecuted for the offence punishable under Section 307 of the Indian Penal Code (for short 'IPC'). After trial the learned Magistrate found the Revision Petitioner guilty of the said offence and convicted thereunder. He was sentenced to undergo rigorous imprisonment for a term of 5 years and to pay a fine of Rs.50,000/- (Rupees Fifty Thousand only). In default of payment of fine to undergo simple imprisonment for a further period of 3 months for the offence punishable under section 307 IPC. In case the fine is paid, half of the amount shall be paid to PW1(the victim) as provided under section 357 (1)Cr.P.C. Set off is also allowed under Section 428 of Cr.P.C. Aggrieved by the conviction and sentence though he had preferred Crl.Appeal No.162 of 2007 on the files of the Additional Crl.R.P.No.1860 OF 201.2 Sessions Judge, Kollam, after re-appreciating the entire evidence on record the learned Sessions Judge also confirmed the conviction and sentence as such without any interference. This Criminal Revision Petition is filed challenging the concurrent findings of conviction and sentence imposed on the Revision Petitioner. The prosecution case in brief is as follows.
2. On 24/01/2001 at 7.30 P.M. because of the grudge that CW1 the wife of the accused went over to the residence of her friend without seeking permission, he slapped at her face and back and she retorted to that act in a filthy language. Suddenly, the accused took a knife and inflicted fatal injuries by stabbing thrice at her abdomen and also above her left elbow and thereby made an attempt to kill her. The above incident was occurred while she was at the kitchen of her house where she was residing. The learned counsel for the Revision Petitioner advanced arguments on various grounds. The learned counsel submits that the conviction is based on the evidence of PWs 1, 2 and 3. No other independent Crl.R.P.No.1860 OF 201.3 witnesses have been examined though they are residing in a thickly populated area. None of the neighbours were cited or examined as occurrence witnesses. There is a delay of two days in registering the crime. Though the incident was happened on 24/01/2001 at 7.30 P.M., the crime was registered and FI statement was taken on 26/01/2001 at 1.45 P.M. and the delay is fatal. Though the injured was brought to the hospital by a lady by name Sobhanakumari, she was not examined. Even if the prosecution case is admitted, there is no evidence constituting offence under Section 307 of the Indian Penal Code. The accused has no criminal antecedents and he is not involved in any other offence.
3. To prove the prosecution case, the PWs 1 to 10 were examined and Exts.P1 to P10 were marked. PW1 is the injured, who is none other than the wife of the accused. Ext.P1 is the statement given by her. She testified that on 24/01/2001 at 7.30 P.M. while she was engaged in teaching her children in the room of the house where they were residing, the accused came over there Crl.R.P.No.1860 OF 201.4 and slapped her at the face, fisted at her back and asked her where she had gone without seeking his permission. She retorted in a way using filthy language . Immediately he drew MO1 knife from the side of the thatch of the shed and stabbed her at her stomach 3, 4 times in quick succession and stabbed her at the left hand elbow resulting throughout injury. Then he inflicted stab injury at her left ear also. When she screamed aloud, her sister in law and mother, who also were present in the house, rushed to the spot of occurrence. Immediately the accused fled away from the place of occurrence after tucking MO1 knife into the thatched wall of the shed. She further deposed that if she has not been given immediate medical attention, her death would have been caused. She identified the MO1 knife which was used for stabbing her. After evaluating evidence of PW1, the trial court found that the evidence of PW1 is in corroboration with her statement in Ext.P1 FI statement. The aforesaid evidence of PW1 is further corroborated by the evidence of PW2, her sister in law and PW3, her mother. Their Crl.R.P.No.1860 OF 201.5 evidence supported the evidence of PW1 in all material aspects. In appeal, the appellate court also re- appreciated the evidence of PWs 1 to 3 and the Appellate Court found that the evidence of these witnesses corroborated each other and proved the prosecution case beyond the shadow of doubt. The court below concurrently observed that though these witnesses were subjected to cross examination at length and into minute details nothing tangible had been elicitated to render the versions of PW1 untrustworthy and incredible. Thus the conviction is based on the evidence of PWs 1 to 3.
4. The learned counsel for the Revision Petitioner pointed out that no independent witness was examined though they are residing in thickly populated area. Going by the evidence it could be seen that the place of occurrence is a room in the house of PW1 and the time of occurrence is at 7.30 P.M. In such a situation, at that time, there is no possibility to have the presence of any person other than the members of the family to witness the incident, that too when the offence was Crl.R.P.No.1860 OF 201.6 committed within the room. The members who were present in the house was examined as PWs 2 and 3. Therefore, I find that there is no substance in the argument that no independent witness was examined and the same is fatal to her prosecution case.
5. The next point is that though the date of occurrence was on 24/01/2001 at 7.30 P.M., FIR was registered on 26/01/2001 at 1.45 P.M. Going by the evidence of PW8 Investigating Officer he has sufficiently and convincingly explained the cause of delay. He has given evidence that though the date of occurrence was on 24/01/2001 at 7.30 P.M., the intimation regarding the occurrence was given to them on 26/01/2001 by the hospital authorities and delay of one day was caused by the laches of the hospital authorities. Going by the Ext.P3 wound certificate it could be seen that on 24/01/2001 at 8.15 P.M. ie. 45 minutes after the incident the injured was brought to the hospital and the doctor examined her. Therefore, it could be seen that the incident was happened on 24/01/2001 at 7.30 P.M. and immediately Crl.R.P.No.1860 OF 201.7 after the incident, she was brought to hospital and the doctor examined without any delay. Therefore, by evidence it is established that the delay was caused by the laches of the hospital authorities in the matter of giving intimation to police. Therefore, I cannot find fault or defect with prosecution for the delay and certainly it cannot make the prosecution case impuissant.
6. Another contention raised by the learned counsel is that the person who brought the injured to the hospital was not examined. Regarding that aspect the Investigating Officer stated in evidence that she was not available for giving evidence for prosecution case. I am of the opinion that considering the reliable and cogent evidence of occurrence witness the non-examination of the person who brought the injured to hospital pales to insignificance. The evidence of PWs 1 to 3 gets assurance from Exts.P1 to P5 prosecution documents prepared contemporaneously and immediately after the commission of the offence. Further the evidence of PW1 is corroborated by the evidence of PW9, doctor who Crl.R.P.No.1860 OF 201.8 issued P3 wound certificate. His Evidence coupled with Ext.P3 wound certificate gives assurance to the evidence of PW1 as regards the nature of stabbing and the nature of weapon used by the accused. Further the evidence of PW1 is again corroborated by the recovery of MO1 knife. In short, the evidence of PWs 1 to 3 and PW9 coupled with Exts. P1 to P4 and P9 proves the entire prosecution case as such beyond reasonable doubt. There is no illegality or impropriety in the judgment under challenge. I do not find any kind of perversity in the appreciation of the evidence also. Consequently, I confirm with the verdict of guilt found by the court below concurrently and the conviction thereunder.
7. Coming to sentence, the learned counsel for the Revision Petitioner submits that the sentence imposed on the Revision Petitioner is excessive and dis- proportionate with the nature and gravity of the offence. Even if the prosecution case is admitted as such, the unfortunate incident was happened on a sudden provocation and he had never been involved in any other Crl.R.P.No.1860 OF 201.9 offences. He has two children also. The learned counsel for the Revision Petitioner prayed for an opportunity to get reformed and to lead a peaceful life. Going by the judgment also it could be seen that he has not been convicted in any other offence and at the time of occurrence he was only 30 years. Prison term must be imposed to secure the interest of deterrence; but deterrence in a case like this does not necessarily depends upon the length of the term that the offender spends behind the bars. Considering his present age and the fact that he is a person having two children, a period of 4 years is sufficient to get him reformed.
8. Consequently, in modification of the sentence imposed by the trial court and confirmed by the Appellate Court the substantive sentence of imprisonment imposed on the Revision Petitioner is reduced and modified to rigorous imprisonment for a period of 4 years and also to pay a fine of Rs.50,000/-(Rupees Fifty Thousand only). In default of payment of fine to undergo simple imprisonment for a further period of 3 months for the Crl.R.P.No.1860 OF 201.10 offence punishable under Section 307 IPC. In case the fine amount is paid or realised, the entire amount shall be paid to PW1 (the victim) as provided under Section 357 (1)(b)Cr.P.C. The Revision Petition is allowed in part. Sd/- K.HARILAL, JUDGE MJL