RAVI S/O DORAISWAMI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant, who is now undergoing imprisonment for the offence under Section 326 of I.P.C., as per judgment dated 15.9.2011 in S.C.No.17 of 2011 of the court of Additional Sessions Judge (ADHOC)-I, Kalpetta and who faced the prosecution for the offences under Sections 326 and 308, challenging his conviction and sentence imposed by the above judgment, preferred the above appeal.

(2.) THE case of the prosecution is that the accused at about 5.30 a.m. on 7.10.2010 attempted to commit murder of his own wife from Harison Malayalam Plantation Estate situated at Padavettikunnu and in the course of the incident, he inflicted blows with a chopper and thereby caused grievous hurt on PW1, who sustained fatal injuries on the vital parts of her body and she apprehended death. On the basis of the said allegation, crime No.278 of 2010 was registered in the Meppadi Police Station for the offences punishable under Sections 326 and 308 of the I.P.C. On completing the investigation, charge was laid before the Chief Judicial Magistrate Court, Kalpetta from where the case was committed by order dated 5.1.2011 in C.P.No.40 of 2010. When the accused was produced, after hearing the learned Public Prosecutor and the counsel for the accused, a formal charge was framed against the accused for the offences punishable under Sections 326 and 308 of I.P.C. which when read over and explained to the accused, he denied the same and pleaded not guilty, consequently, the prosecution adduced its evidence by examining Pws.1 to 12 and producing Exts.P1 to P12 documents. Mos.1 to 4 are also identified and marked as material objects. Exts.D1 and D2 were marked as defence exhibits. Finally, the learned Judge has found that there is no evidence against the accused to hold that he had committed the offence punishable under Section 308 of I.P.C., but held that the available evidence including Ext.P12 wound certificate disclosed that the accused has caused fracture to mandibles of the victim and therefore, the offence under Section 326 of I.P.C. is proved against him and accordingly, he is found guilty for the said offence and convicted him for the offence under Section 326 of I.P.C. whereas he is acquitted for the offence under Section 308 of I.P.C. On such conviction, the accused is sentenced to suffer simple imprisonment for five years and to pay fine of Rs.15,000/-, in default, he is directed to suffer simple imprisonment for another one year for the offence under Section 326 of I.P.C. Set off is allowed and it is also ordered that in case the fine is paid or realised, the same shall be given to the injured as compensation under Section 357(1) of the Cr.P.C. It is the above conviction, sentence and direction are under challenge in this appeal.

(3.) PW2 is the sister of the victim PW1. PW2 is not an eye witness. According to PW2, in pursuance of the information received, herself and her husband came to the house of Benny and at that time, PW1 told her about the entire incident. She had also stated that she went along with PW1 when PW1 was taken to the hospital. According to PW2, while PW1 was admitted as an inpatient in the Medical College Hospital and undergoing treatment, the Police attached to Meppadi Police Station came to the hospital and as PW1 was not in a position to speak, she gave statement to the Police, narrating the entire incident as gathered by her from PW1. Ext.P1 is the F.I. Statement so given. During the examination of PW2, she has stated that when the victim was taken to the hospital, her husband and driver stopped the jeep near Meppadi Police Station and informed about the incident. PW2 has also stated that though the victim was firstly taken to Vythiri hospital, immediately she is taken to the Medical College Hospital, Kozhikode due to the seriousness of the injury sustained by PW1. PW3 is the husband of PW2 and he had also deposed in terms of the deposition of PW2/his wife since PW3 has also no direct knowledge regarding the incident and he came to know only when himself and his wife came to the spot and as told to them by PW1. PW4 is Benny in whose house PW1 reached immediately after the incident. When PW4 was examined, he had deposed that he did not see the incident, but according to him, at about