Point of Law: Before releasing the offender, on probation, Court must satisfy itself that offender or his surety, if any, has a fixed place of abode or regular occupation in place over which Court exercises jurisdiction or in which the offender is likely to live during period for which he enters into the bond.

JUDGMENT :

This appeal has been preferred by the accused in S.C. No. 1870/2004 on the files of the Additional Sessions Court Fast Track-II, Thiruvananthapuram against the judgment dated 6.12.2007 convicting him under S. 307 of IPC.

2. The accused, an Indian Airlines retired employee, now aged 77 years, faced trial for the offence punishable under S. 307 of IPC.

3. The prosecution case, in short, is that on 17.1.2003 at 4 pm, at the compound of the house of PW1, the accused inflicted stab injury on the deceased CW2 with MO2 knife on his lower abdomen, causing penetrating wound protruding intestine, with omentum and when CW2 resisted the attack by raising both hands, the accused caused stab injuries on various parts of his body, such as, the right armpit, inner side of right hand, left shoulder, left side of nose and left side of the neck.

4. On receipt of summons, the accused appeared at the court below. After hearing both sides, the court below framed charge against the accused under S.307 of IPC. The charge was read over and explained to the accused who pleaded not guilty. On the side of the prosecution, PW1 to PW9 were examined and Exts. P1 to P10 were marked. MO1 and MO2 were identified. After trial, the court below found the accused guilty under S.307 of IPC and convicted him for the said offence. He was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.20,000/-, in default to suffer rigorous imprisonment for a further period of six months. Aggrieved by the conviction and sentence, the accused preferred this appeal.

5. I have heard Sri. Sasthamangalam S. Ajithkumar, the learned counsel for the appellant and Sri. Sanal P. Raj, the learned Public Prosecutor.

6. The learned counsel for the appellant impeached the findings of the court below on appreciation of evidence and the resultant finding as to the guilt. The learned counsel submitted that PW1 to PW3 whose evidence were heavily relied on by the court below are interested witnesses being the wife, employee and nephew of CW2 and no independent witness was examined. The learned counsel further submitted that the prosecution failed to explain the injuries found on the body of the accused. The accused is entitled to the protection of private defence, added the counsel. Lastly, the counsel submitted that, at any rate, the conviction under S.307 of IPC is not sustainable.

7. The learned Public Prosecutor on the other hand supported the findings and verdict handed down by the court below and argued that necessary ingredients of S.307 of IPC had been established and the prosecution has succeeded in proving the case beyond reasonable doubt.

8. The prosecution mainly relied on the oral testimony of PW1 to PW3, the evidence of recovery of knife (MO2) and the medical evidence, oral testimony of PW8 and Ext. P6 wound certificate, to prove the incident and to fix the culpability on the accused. PW1 is the wife of the injured (CW2). After the incident, the injured sustained natural death. Therefore, he was not available at the time of trial to give evidence.

9. The accused and CW2 were neighbours. The house of CW2 is situated on the southern side of the house of the accused. In fact, the said house was sold by CW2 to the accused. CW2 has a plot in front of the house of the accused. On the date of the incident, cleaning and ground levelling work was going on in the property of CW2. PW2 and one Vinod (CW4) were the coolie workers engaged by CW2 for the said work. PW1 deposed that at 4 pm her husband was standing at the place of occurrence along with her watching the demolition of wall by the labourers, PW2 and CW4. At that time the accused opened the door of the window of his room and scolded CW2 who retaliated by telling him to close the door and to go to bed. Then, the accused suddenly rushed towards her husband uttering that he would finish him and stabbed on the lower part of the abdomen at right side with MO2 knife hidden in his hand causing him serious injurie