1.The sole accused in SC No.1171/2010 on the files of the First Additional Sessions Judge, Kollam, has filed this criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973, challenging the Judgment dated 22.12.2010 in the above case. The State of Kerala, represented by the Public Prosecutor, is the respondent.

2. In this case, the counsel who filed the appeal did not appear for a long time and accordingly, this Court was forced to appoint Adv.Manu Nair as State Brief to argue the matter for and on behalf of the appellant.

3. Heard the learned State Brief appearing for the appellant/accused and the learned Public Prosecutor in detail. Perused the verdict under challenge and the records of the trial court.

4. Originally, charge sheet was filed before the Judicial First Class Magistrate Court-I, Kottarakkara, alleging commission of offences punishable under Sections 449 and 302 of IPC. The prosecution allegation was that, at about 7.00 pm on 07.12.2003, the accused committed house trespass upon the residence of the deceased, by name, Kamalakshi, aged 70 years, and stabbed her with MO3 knife, causing fatal injuries. Consequent to the injuries sustained, at 2.45 am on 17.12.2003, Kamalakshi breathed her last.

 5. The learned Additional Sessions Judge framed charge for the said offences and proceed with the matter. During trial, PW1 to PW15 were examined, Exts.P1 to P20 and MO1 to MO4 were marked on the side of the prosecution. Apart from marking Ext.D1, D1(a) and D2 contradictions, during examination of PW1, no defence evidence was adduced.

6. The learned Sessions Judge scrutinized the evidence in detail, and finally, found that the accused/appellant had committed offences punishable under Sections 451 and 304 Part II of IPC and accordingly, she was convicted and sentenced to undergo rigorous imprisonment for 3 years for the offence punishable u/s.304 part II of IPC and to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.10,000/- (Rupees ten thousand only) in default to undergo simple imprisonment for 3 months for offence u/s. 451 of IPC. The substantial term of imprisonment shall run concurrently. If the fine is realised the same will be given to PW1 as compensation. Set off is allowed for the period she was in remand in connection with the investigation, inquiry and trial.

7. The learned State Brief argued the case by pointing out the lacunae in the prosecution evidence in minute niceties to canvass acquittal of the accused. It is further pointed out by the learned State Brief that, in this case, PW5 turned hostile to the prosecution and in fact, the learned Sessions Judge given much emphasis to the evidence of PW1 and PW2, who are the son and daughter-in-law of the deceased Kamalakshi, though their evidence is not free from doubts. He also pointed out that during cross-examination of PW1, Exts. D1, D1(a) and D2 material contradictions were extracted and therefore, the evidence of PW1 could not be believed. It is also pointed out that, as regards the evidence of PW2, though she was present at the room, where Kamalakshi was stabbed by the accused resulting in her death, she failed to remember something asked to her during cross-examination. Therefore, though PW2 is an eyewitness to the occurrence, her evidence could not be believed as gospel of truth. It is also pointed out by the State Brief that, although the recovery of MO3 knife under Section 27 of the Evidence Act was mooted by  the  prosecution,  as  per  the  observations  in paragraph No.20, the learned Sessions Judge disbelieved the recovery. Thus, recovery of MO3 as the weapon used by the accused to cause stab injuries on Kamalakshi failed to be proved. It is also pointed out that no motive was alleged by the prosecution to commit the offences by the accused/appellant. Thus, the learned State Brief canvassed interference in the verdict impugned and pressed for acquittal of the accused.

8. Whereas it is submitted by the learned Public Prosecutor that in this case, the one and only witness, who had seen the occurrence, is PW2. As regards the evidence of PW2, no material contradictions or improbabilities could be found. Therefore, the evidence of PW2, the occurrence witness, alone is sufficient to find commission of offences found by the learned Sessions Judge, corroborated by the version of PW1 and other witnesses. It is also submitted that though Exts.D1, D1(a) and D2 contradictions were extracted during the examination of PW1, the same are not material and PW1, in fact, reached the room of Kamalakshi on hearing the cry of the PW2 and he had only witnessed the aftermath of the occurrence. It is also pointed out by the learned Public Prosecutor that the observation of the learned Sessions Judge disbelieving the recovery of MO3 knife also could not be justified, as the recovery has been established by the evidence of PW1, since MO1 to MO3 were taken together by the accused on the basis of her disclosure statement disclosing authorship of concealment. Even otherwise, the prosecution successfully established the offences alleged, and the impugned verdict does not require any interference.

9. Having considered the rival submissions, points arise for consideration are,

                  1. Whether the Additional Sessions Judge is right in holding that accused committed the offence punishable under Section 451 of IPC?

                  2. Whether the Additional Sessions Judge is right in holding that accused committed the offence punishable under Section 304 Part II of IPC?

                  3. Whether the impugned verdict would require any interference by this Court.

                  4. The order to be passed.

10. Point Nos.1 to 4

Here, the death of Kamalakshi at 2.45 am on 17.12.2003 is not a matter in dispute. PW10 examined in this case is Dr.Rema, Associate Professor for Forensic Medicine and Deputy Police Surgeon, who conducted autopsy on the body of Kamalakshi at 1.45 pm on 17.12.2003, and she supported her finding in Ext.P7 postmortem certificate. PW10 deposed that she had conducted the autopsy of the body of the deceased Kamalakshi and observed the following antemortem injuries.

                  1. Sutured penetrating wound 2.5cm long obliquely placed on left side of front of abdomen, its upper outer end 3.5 cm to left of midline and 21 cm below collar bone. The left lobe of liver was found transfixed for a depth of 2.5 cm and the wound of entrance on the front aspect of left lobe was seen sutured for a length of 1.5 cm. The lesser omentum was also found sutured. The wound track was directed backwards and downwards for a total minimum depth of 5 cm.

                  2. Sutured penetrating wound 2 cm long horizontal on the left side of back of chest 6 cm behind and 6 cm below the back fold of armpit. The left side of chest cavity was seen penetrated through the fifth intercostal space and incised the back aspect of lower lobe of left lung (1x2x0.2x0.2 cm). The pleura around the injury on the lung was thickened and oedematous with flakes of pus. The wound was directed forwards and downwards for a total minimum depth of 4.2 cm. The lower lobe of left lung on sectioning exudded beads of pus at places.

                  3. Sutured wound 1 cm long and 2.5 cm deep on the outer aspect of right thigh 17cm above knee.

                  4. Sutured wound 2 cm long and 1.5 cm deep oblique on the outer aspect of left arm its upper outer end 7cm below top of shoulder.

                  5. Sutured wound 1.5 cm long and 0.8 cm deep, oblique on the back of left forearm, its lower inner end 3 cm above wrist.

                  6. Healing wound 1 cm long on the back of left wrist.

                  7. Contusion 3x3x0.4 cm reddish brown on the left side of forehead 5 cm above the middle of eyebrow (seen on dissection).

                  8. Surgical sutured laparotomy wound 22 cm long vertical on the front of abdomen in the middle just below the lower end of breast bone.

                  Sutured wounds had densely adherent margins but were seen cleanly cut on their inner aspects.

                  According to her, the opinion as to the cause of death, was ‘death was due to injury sustained to chest and abdomen, i.e., injury Nos.(1) and (2)'. She also opined that injury Nos. 1 and 2 are independently sufficient to cause death and those injuries could be caused by using MO3 knife. She also deposed that injury No.7 could be caused by coming into contact with any blunt surface or object and injury No.8 was a surgical wound. She also deposed that MO3 is a dangerous weapon. Thus it could be seen that Kamalakshi died due to the injuries sustained, as noted in Ext.P7, as deposed by PW10.

11. Now, the crucial question is; who caused the injuries with intention to commit culpable homicide not amounting to murder of Kamalakshi, or with knowledge that the overt acts led to the injuries would cause culpable homicide not amounting to murder. In this regard, the crucial evidence is that of PW2. PW2 deposed that PW1 examined in this case is her husband. According to her, the accused was known to her and she was a resident on the immediate northern side of her house and she had witnessed the occurrence. According to her, at the time of occurrence, she along with her new born child was at the room. She deposed that at the time of occurrence, i.e., at about 7 pm on 07.12.2003, Kamalakshi was watching TV. She deposed that her husband - PW1 went to light lamp in the temple in connection with 'Karthika' and she was engaged in feeding her new born child. When she noticed some murmur on the chair, she lifted her head and looked. Then she noticed that the accused was stabbing mother-in-law repeatedly by using a knife, and one stab injury was on the area of her nipple. She could not listen everything, as she was taking rest after Caesarean surgery and she also could not stand up due to the same. She deposed further that after stabbing the mother-in-law, the accused left the place after uttering that there were persons to save her. She also deposed that the accused carried the knife and she wore a rose skirt and green blouse. She also deposed that the occurrence was at the room on the eastern side and at the time of occurrence, her mother-in-law wore a dhoti and blouse. She identified MO1 series as the dhoti and blouse, and also identified the blouse and skirt worn by the accused at the time of occurrence as MO2 series. According to her, the knife used to stab by the accused had a length of 1 palm and there was endorsement therein stating ‘Moorthi vaka' and she had seen the same when the police showed it. She identified the knife as MO3. She also deposed that at the time of occurrence, she was laying on a mat on the floor and she cried aloud when the accused stabbed and left the place. Then CW4, Johnykutty (Appachan) came and she entrusted the child to Appachan and tied the injury and she could remember only these aspects. Thereafter, her husband reached. While so, she stated that Kamalakshi was stabbed by Sathyavathy. According to her, she had given statement to the police on the third day and she had given statements twice.

12. It is relevant to note that during cross-examination, though many questions were asked, nothing was extracted to disbelieve the evidence of PW2, the sole eye witness to the occurrence. But she deposed that she could not remember certain aspects in detail as she was on rest after the surgery. At the same time, she also gave answers regarding the hospitalization of Kamalakshi. During cross-examination, it was suggested that PW1 used to abuse and assault Kamalakshi since there was refusal on her part to give documents in his favour and the same was denied by PW2.

13. Regarding the motive, the learned Sessions Judge addressed the same in paragraph No.19, stating that there were disputes regarding the overhanging branches of the rubber trees in the property of the accused and she had planted some saplings of pineapple at the mud walls on the boundary. PW7, the then Panchayat President, was examined to prove that PW2 had filed Ext.P4 complaint regarding the said dispute, and PW8, Smt.Sarojini Babu, the then Panchayat ward member, also was examined to show that she was entrusted with Ext.P4 for enquiry. PW15, the Investigating Officer, taken Ext.P4 by describing the same in Ext.P11 mahazar and thus, the motive behind the occurrence is also stated by PW2 in a similar way as that of PW1 and PW6. PW2, in fact, supported the evidence of PW1 regarding his arrival and hospitalization of his mother. During cross- examination of PW1, Exts.D1, D1(a) and D2 contradictions were extracted to doubt whether the deceased was conscious after the occurrence. In fact, the impact of these contradictions was addressed by the learned Sessions Judge relying on the evidence of PW13, the Lecturer in Surgery attached to Medical College Hospital, stating that at 8.40 p.m. on 07.12.2003 when he examined the deceased, she was found conscious and oriented. Thus, the evidence of PW1 and PW2 to the effect that after the occurrence also, Kamalakshi was conscious need not be disbelieved, as the same is the medical opinion given by PW13. The evidence of PW5, who reached the place of occurrence, in front of the house, to park the autorickshaw, stated that he witnessed the accused leaving the house with MO3 knife. But the learned Sessions Judge was not inclined to accept his evidence. In fact, the evidence of PW5 is of no significance where evidence of PW2, the eye witness, is believable. Otherwise, the evidence of PW5 is in favour of the prosecution.

14. PW6, the other daughter-in-law of the deceased had given a detailed version regarding the movements of accused before and after the incident. According to her, while she was drawing water from the well, she saw the accused pacing up and down in the backyard of her house holding a knife, at times staring at her and uttering something. After some time, she heard the cry of PW2 and when she rushed to the house, she saw the accused running towards her house and when she followed, the accused got into the house and closed the doors. She returned to the house and saw the deceased with the injuries that were being tied by PW2. When enquired about the child of PW2, she had deposed that it was at the hands of CW4. During cross-examination, she stated that as the police had not asked her about CW4, she had not given any statement on those aspects. She was cross-examined to the effect that she was deposing in tune with the prosecution case on account of some extraneous pressures. This suggestion was declined by PW6.

15. Here, the accused is a relative and neighbour of PW1, PW2, PW6 and the deceased. The prosecution case is that a dispute had been prevailing between the family of the deceased and the accused. PW2, in fact, is the daughter-in-law of the deceased, and she had occasion to witness the occurrence directly, though she was on rest after Caesarean surgery and the occurrence took place while she was feeding the new born child. On scrutiny of the evidence tendered by PW2, the evidence given by PW2 as to causing of stab injuries repeatedly by the accused on Kamalakshi, which resulted in her death, as deposed by the doctor who conducted the autopsy examination of the deceased, is found to be wholly reliable and unimpeachable.

16. It is true, as argued by the learned State Brief, that Exts.D1, D1(a) and D2 contradictions were extracted during cross-examination of PW1. In fact, those are not material contradictions, as already discussed. Though PW2 had given a clear picture regarding the occurrence and the overt acts of the accused, she failed to remember answers to certain questions put to her and according to her, she saw the occurrence while lying and feeding the new born child. Therefore, this lack of memory would not make her evidence not credible.

17. Regarding the recovery of MO3, even though the learned Sessions Judge found that recovery of MO3 knife under Section 27 of the Evidence Act could not be believed, the evidence of PW2, who had identified MO3 as the weapon used by the accused to cause stab injuries on Kamalakshi, would be sufficient to hold that the accused used MO3 knife. That apart, the Sessions Court not believed the recovery of MO3 from the house of the accused, that too from an open place, presumably for want of concealment of the weapon, which is an ingredient to prove the recovery in terms of Section 27 of the Evidence Act. Thus, none of the contentions raised by the learned State Brief for the appellant/accused to unsustain the verdict found to be acceptable.

18. Therefore, on reappreciation of the evidence, this Court is of the view that the Sessions Court is right in appreciating the evidence and this Court also holds that the accused committed offences punishable under Sections 451 and 304 Part II of IPC. Therefore, the conviction is liable to be confirmed.

19. Coming to the sentence, the sentence imposed by the Sessions Court for the offence punishable under Sections 451 and 304 Part II, as extracted hereinabove, is found to be very reasonable, in the facts of the case. Therefore, the sentence also does not require any interference.

20. In the result, this appeal fails and is dismissed. Consequently, the conviction and sentence imposed on the appellant stand confirmed.

21. The order suspending sentence and granting bail to the accused/appellant stands cancelled and her bail bond also stands cancelled.

The accused/appellant is directed to surrender before the Sessions Court to undergo the sentence, forthwith, failing which, the Sessions Court is directed to execute the sentence, without fail.

Registry is directed to forward a copy of this judgment to the Sessions Court, for information and compliance.