IMPORTANT POINTS
The observations made personally by investigating officer at the scene, such as what he saw etc., have to be deposed to by him in Court in the light of S.60 of the Evidence Act. Those facts must be proved by direct oral evidence of investigating officer and not by producing scene mahazar. In the absence of Police Officer's oral evidence in Court regarding the facts observed by him at the scene which are stated in the scene mahazar, it will illegal for the Court to rely upon the contents of scene mahazar as 'evidence'. In other words, the relevant facts which investigating officer observed at the scene and which are recorded by him in scene mahazar must be deposed to by him in Court, if the Court wants to rely upon them as "evidence".

JUDGMENT :

The above appeal is filed against the judgment dated 05.04.2005 in Sessions Case SC No. 141/2004. On the file of the Additional Sessions Judge-Fast Track Court–I (Adhoc) Manjeri. The appellant herein was convicted and sentenced by the Trial Court, under Section 304, Part I of the IPC.

2. The Prosecution case is that, on 26.11.2002 at 10 pm, the appellant stabbed the deceased Sajeer with a dagger from a place near to the Keerthi Theatre at Nilambur and that the victim succumbed to the injuries by undergoing treatment at MIMS hospital, Kozhikode, on 11.12.2002. Hence the Investigating Officer filed a Final Report against the appellant alleging offence punishable under section 324 and 302 of the IPC. To substantiate the case, the prosecution examined PW1 to PW15. Exts. P1 to P18 are the exhibits marked on side of the prosecution. MO1 is the material objects marked in this case.

3. After going through the evidence and the documents, the Trial Court found that the accused is not guilty under Section 302 and 324 of the IPC, but convicted him under section 304 Part I of the IPC and sentenced him to undergo rigorous imprisonment of 10 years and to pay a fine of Rs.5000/-. In default of payment of fine, the appellant is directed to undergo imprisonment for a term of 1 year. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.

4. Heard the learned counsel for the petitioner, the appellant and the learned Public Prosecutor. In this case, the alleged incidents happened on 26.11.2002 at 10 pm. PW1 was examined to prove the incident. He deposed that, he and the deceased Sajeer were friends. He admitted that, he knew the accused. According to him, he and one Riyas Babu and Sajeer (deceased), boarded an autorikshaw of Sajeer, near from Urvasi Bar. PW2 Dayanandan was driving the autorikshaw. On the way, when they saw the accused, the autorikshaw was stopped. Thereafter he saw the accused and Sajeer were talking about 50 meters away. He also deposed that, there was a mutual fight between the accused and the deceased. Consequently people gathered there. He also deposed that, he and Riyas Babu went there and tried to pacify the same. He admitted that, he had not reached immediately after the incident. He deposed that, there was financial transaction between the deceased and the accused. He also deposed that, he didn't hear the conversation between the accused and the deceased. He reached the place, when the scuffle started. He also admitted that, he sustained injury when he intervened. Thereafter he was declared hostile by the prosecution.

5. The prosecution witness 2 is Dayanandan. He is an auto driver. According to him, he himself, the deceased and PW1 was travelling in the

autorickshaw and when they reached near the house of the accused, the autorikshaw was stopped. The others in the autorikshaw went out. He went to Keerthipadi. After sometime, when he came back, he saw the deceased coming in the opposite side pressing his abdomen. He was also declared hostile by the prosecution.

6. PW3 is only a witness to Ext.P3 scene Mahazar. PW4 is the Assistant Surgeon at Taluk Hospital, Nilambur, who examined Riyas Babu and issued Ext.P5 Wound Certificate. He also examined the deceased Sajeer on same day and Ext.P4 is the Wound Certificate. PW5 is the consulting Medical Officer at MIMS Hospital, through whom Ext.P6 wound certificate of the deceased was marked. PW6 is the Doctor who conducted postmortem and Ext.P7 is postmortem certificate. PW7 is the Village Officer through whom Ext.P8 sketch is marked. PW8 is the Junior Superintendent attached to the Nilambur Judicial First Class Magistrate's Court. He was examined to prove Ext.P9 forwarding note of the properties. PW9 is the inquest witness. PW10 is the Circle Inspector who investigated the case, through whom, Exts.P11 to P14 are marked. Ext.P12 is the recovery mahazar. According to PW10, based on the confession statement of the accused, MO1 (knife) was recovered as per Ext.P12