BENNY PAUL @ BENNY S/O. PAULOSE, MAZHUVANCHERIL HOUSE BHARANANGANAM VILLAGE, EDAPPALLY KARA Vs. STATE OF KERALA CIRCLE INSPECTOR OF POLICE, PALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction in S.C. No. 84 of 2011 passed by the Court of Session, Kottayam. The appellant/accused along with two others was charge sheeted in crime No. 161 of 1992 of Pala Police Station for the offence punishable under sections 302 and 506 read with 34, IPC. The Court of Judicial First Class Magistrate, Pala committed the case as per proceedings in C.P. No. 10 of 1993 to Court of Session, Kottayam and it was taken on file and numbered as S.C. No. 55 of 1993. During its pendency the appellant herein/the original first accused therein, absconded and thereafter the case against him was split up and included in the register of Long Pending Cases. Accused Nos.2 and 3 therein who stood the trial in S.C. No. 55 of 1993 were found guilty of the offence punishable under section 324 read with section 34, Penal Code and were convicted and sentenced therefor. The appellant herein was subsequently arrested and produced before the Court of Session, Kottayam and thereupon the case was re-filed as S.C. No. 84 of 2011. After preliminary hearing, charge was framed against him under sections 302 and 506(ii) read with section 34, IPC. It was read over and explained to him and he pleaded not guilty and claimed to be tried.

(2.) To bring home the charge, the prosecution has examined PWs 1 to 15 and got marked Exts. P1 to P28. No material object was available for identification though during the trial in S.C.No. 55 of 1993, the prosecution had identified MOs 1 to 9 including the knives which were allegedly used by the appellant herein viz., MO1 and the second accused therein viz., MO2. Inadvertently, those material objects were directed to be destroyed as per the judgment in S.C.No. 55 of 1993 and consequently they were destroyed. In this context, it is to be noted that the appellant who was the original first accused in S.C. No. 55 of 1993 was arrested and consequently, the case against him which was split up was re-filed only in the year 2011 viz., after 17 years. After the closure of the evidence of the prosecution, the appellant-accused was questioned under section 313, Cr.P.C and he denied all the incriminating circumstances put to him. The trial court found that the appellant herein was not entitled to be acquitted under section 232, Cr.P.C and therefore, he was called upon to enter on his defence. Nonetheless, he did not adduce any evidence.

(3.) After considering the evidence on record, the learned Sessions Judge arrived at the conclusion that the prosecution has succeeded in proving the guilt of the accused for the offence punishable under section 302, Penal Code and at the same time found that the prosecution has not succeeded in proving his guilt for the offence under section 506(ii) IPC. Thereupon, for the conviction under section 302 IPC, the appellant was sentenced to undergo imprisonment for life and also to pay a fine of Rs. 50,000.00. The amount of fine, if recovered, was directed to be paid to the legal heirs of deceased Sunny, as compensation. In default of payment of fine, he was ordered to undergo simple imprisonment for one year. Hence, this appeal.