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2018 Supreme(Ker) 162
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M.SHAFFIQUE, MARY JOSEPH, JJ.
Babu – Appellant
Versus
State of Kerala – Respondent
Crl.A.No. 1310 of 2014
Decided On : 27-03-2018
For the Appellant : Smt. Sherlymol Thomas, Adv.
For the Respondent: Sri. S.U. Nazar, Public Prosecutor
Headnote:
Indian Penal Code- Section 300, Section 302-The court below was not justified in finding the accused guilty for the offence under Section 300 I.P.C. and convicting and sentencing him under Section 302 IPC-The court below ought not to have found the accused guilty under Section 300 IPC and in the said circumstances, the conviction of the accused cannot fall under Section 302 IPC. At the most, a conviction under Section 304 Part II alone is possible in the case on hand. The impugned judgment on the said ground is only liable to be modified
Statement of facts:
The judgment dated 30.06.2014 of Additional District & Sessions Judge-II, Pathanamthitta in SC No.575/2013, whereby Sri.Babu, S/o.Thomas, Kalathil Veedu, Adampadam Colony, Thirumoolapuram, Iruvallipra Muri, Kuttappuzha village, who is the sole accused in SC No.575/2013 was found guilty for the offence under Section 300 IPC and was convicted and sentenced for the said offence under Section 302 IPC, to undergo imprisonment for life, is under challenge in the captioned appeal
Finding of the court:
The conviction of the accused under Section 302 is set aside- The accused is found guilty of the offence under Section 304 Part II of Indian Penal Code and he is convicted for that offence and thereby sentenced to undergo simple imprisonment for a term of five years-He was in custody for the last more than five years and had undergone the sentence for the period-The sentence of imprisonment is modified by us from life imprisonment to five years, the accused is ordered to be set at liberty forthwith taking into account the term of imprisonment already undergone by him.
Result: Appeal is allowed
MARY JOSEPH, J.
The judgment dated 30.06.2014 of Additional District & Sessions Judge-II, Pathanamthitta (for short 'the Court below) in SC No.575/2013, whereby Sri.Babu, S/o.Thomas, Kalathil Veedu, Adampadam Colony, Thirumoolapuram, Iruvallipra Muri, Kuttappuzha village, who is the sole accused in SC No.575/2013 was found guilty for the offence under Section 300 IPC and was convicted and sentenced for the said offence under Section 302 IPC, to undergo imprisonment for life, is under challenge in the captioned appeal.
2. The aforesaid Babu was charge-sheeted by the Sub Inspector of Police, Thiruvalla in Crime No.1402/2012 for the offence of murder punishable under Section 302 IPC. Charge was also framed against him by the Court below, for the same offence for which he was charge-sheeted by the Police.
3. The case of the prosecution in a nut-shell is relevant for the purpose of this appeal and accordingly is narrated hereinbelow:
On 29.09.2012 at about 11.30 am. with the intention to kill one Sri.John C. Chacko, the accused Sri.Babu, attacked him with a broken soda bottle in front of a building bearing No.XIV/C-62/14 of Thiruvalla Municipality, situated on the eastern side of M.C. Road, near Thiruvalla-Kurisukavala. The accused stabbed Sri.John C. Chacko on his neck, which inflicted a fatal injury there and the latter succumbed to death on the very same day. Accordingly, the accused was alleged by the prosecution as committed the offence of murder punishable under Section 302 IPC.
4. The first information about the case was lodged at the Thiruvalla Police Station by one Sri.Thomas Chacko, the younger brother of Sri. John.C.Chacko and accordingly Crime No.1402/2012 was registered against Sri.Babu, the accused, by the S.I. of the said Police Station. Investigation was conducted by the C.I. Of Police, Thiruvalla Police Station and on concluding the same, a final report, charge-sheeting the said Sri.Babu, for commission of the offence of murder under Section 300 IPC, punishable under Section 302 IPC, was laid before the Judicial First Class Magistrate Court, Thiruvalla (for short 'the Magistrate'). The Magistrate by proceedings initiated as C.P. No.58/2013 committed the case to the Principal Court of Sessions, Pathanamthitta. The said court made over the case to the court below for trial.
5. The accused appeared on summons before the court below. Since the accused was not represented by a pleader, the court below had assigned a counsel for his defence at the expense of the State. The learned Public Prosecutor representing the prosecution and the learned counsel representing the defence were heard and the court below framed a charge against the accused, for the offence under Section 300 IPC, punishable under Section 302 IPC, based on the charge-sheet and the arguments advanced. The charge was read over and explained to the accused by the court below. The accused pleaded not guilty and thereupon the court proceeded with the trial.
6. On the side of the prosecution, witnesses were examined as PWs. 1 to 15, documents were marked as Exts.P1 to P12 and material objects as MO1 to 9. On closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with reference to the incriminating circumstances brought in evidence by the prosecution. The accused denied all the incriminating circumstances put to him by the court and contended in addition that his name was implicated in the crime in question solely based on suspicion. It is also contended that Sri.John C.Chacko is one among his class-mates and a close friend and that he is totally innocent of the allegations levelled against him in the case. The court below upon appreciating the evidence of the prosecution and hearing the learned Public Prosecutor and the counsel representing the defence found total absence of grounds to enter into a finding of acquittal under Section 232 Cr.P.C. and accordingly posted the case for the accused to enter upon defence. The
