Point of Law: Special circumstances exist mitigating the gravity of the offence, which appeals to our judicial conscience and discretion to show clemency to the accused in the matter of sentence.

JUDGMENT :

Jayachandran, J.

We commence with a Chinese proverb; apposite to the facts of this case:

“If you are patient in one moment of anger, you

will escape a hundred days of sorrow.”

By sheer misfortune a son fell prey to his ungovernable passion upon witnessing an assault on his mother; but his irresistible impulse pierced the chest, involving the heart, of the assailant, his own paternal uncle. The son, sentenced to be imprisoned for life, assails the judgment of conviction for offence under Section 302 of the Indian Penal Code, in this appeal.

2. This Criminal Appeal stems from the judgment of conviction dated 28.04.2016 of the Additional Sessions Court, Vadakara in SC No.44/2012. The sole accused faced indictment for offence under Section 302 of the Indian Penal Code (I.P.C.). As per the judgment impugned, the learned Sessions Judge found that the accused is guilty of the offence alleged and sentenced him to undergo imprisonment for life, as also, to pay fine of Rs.50,000/-with a default clause to undergo rigorous imprisonment for one more year.

3. The prosecution case unfolds as follows :

On 03.01.2010, by about 2 p.m., the deceased, who is the paternal uncle of the accused, reached the Tharavadu house, where the accused and his parents were residing, to remove certain timber logs kept in the Tharavadu property. The mother of the accused opposed removal of timber and sat on the timber logs. There was a heated exchange of words between the deceased and the mother of the accused. Thereafter, the deceased pushed the mother of the accused and she fell down. Infuriated by the same, the accused caught hold of the deceased and pushed him down. The deceased got up with a stick, so as to assault the accused. Thereupon, the accused stabbed the deceased on his chest by using MO1 knife, causing a fatal injury, to which the deceased succumbed.

4. PWs 1 to 25 were examined and Exts.P1 to P25 were marked on the part of the prosecution. MO1 to MO8 were also marked. The learned Sessions Judge essentially relied upon the evidence tendered by PW3 and PW17, the eye witnesses, to find that the appellant/accused is guilty of the offence under Section 302 of the I.P.C.

5. Learned Senior Counsel, Sri.P.Vijayabhanu, upon instructions, contended that the main witness of the prosecution, who had allegedly given Ext.P1 First Information Statement (FIS), turned hostile to the prosecution. He categorically deposed before Court that he had not witnessed the incident. Of the two other witnesses relied upon by the Sessions Court, i.e PW3 and PW17, PW17 is a planted witness, who was introduced pursuant to the order for further investigation and whose presence in the scene of occurrence is highly doubtful. At the instance of the wife of the deceased, a Criminal M.P. was preferred before the Sessions Court. The same was allowed and further investigation was ordered. There is no reference to the name of PW17 in the original final report preferred by PW24. It is thereafter that his statement was recorded and he was introduced as a witness, which, according to learned counsel, is the result of a clear afterthought, to rope in the appellant/accused for the crime in question. Learned Counsel submitted that there is no reference about PW17, James, being present at the spot, going by Ext.P1-FIS preferred by PW1. His version before the Court also would not support the presence of PW17 at the place of occurrence at the relevant time. The name of PW17 is not referred in the former statement of PW3 and therefore, the presence of PW17 spoken to by PW3 before Court is nothing but an improvement, designed to suit the prosecution case, submits the learned counsel. Learned Senior Counsel took us through the evidence tendered by PW3 and PW17 to point out the inconsistency between the two versions.

6. As regards the evidence of PW3, learned Senior Counsel submitted that his very presence in the scene of occurrence is not beyond the pale of doubt. Learned counsel pointed out that th