Conviction under Section 307 IPC affirmed based on corroborated eyewitness testimony and evidence suggesting intent to kill, regardless of fatal injury. The appeal was dismissed.

JUDGMENT

JOHNSON JOHN, J.

This appeal is against the judgment in S.C. No. 144 of 2009 on the file of the Additional Sessions Judge, Adhoc-II, Ernakulam. As per the impugned judgment, the first accused is convicted and sentenced underSection 307 IPC to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/- and the second accused is convicted and sentenced under Section 323 IPC to undergo simple imprisonment for two months.

2. During the pendency of the appeal, the second accused died and since fine does not form part of the sentence against the second accused, the appeal of the second accused is treated as abated.

3. As per the prosecution case, the accused were having enmity towards PW2 for the reason that he had questioned their unauthorised sale of liquor and on 06.08.2005, at about 10 p.m., there occurred an altercation between the second accused and PW2 about the unauthorised sale of liquor by the second accused in front of the residence and shop of PW2 at Kozhyvettumveli and then the second accused beat on the left cheek of PW2 and the first accused stabbed PW2 with a knife on the right abdomen resulting in the protrusion of intestine through the wound. The accused are alleged to have committed the overtacts in furtherance of their common intention to murder PW2 and thereby, committed the offences punishable under Sections 323 and 307 r/w 34 IPC.

4. Before the trial court, when the accused persons pleaded not guilty to the charge, the prosecution examined PWs 1 to 12 and marked Exhibits P1 to P17 and MOs 1 to 5. From the side of the defence, DW1 examined and Exhibit D1 marked.

5. After considering the oral and documentary evidence on record and hearing both sides, the trial court found the first accused guilty under Section 307 IPC and the second accused guilty under Section 323 IPC.

6. Heard Sri. C.P. Udayabhanu, the learned counsel for the first appellant/first accused and Smt. Hasnamol N.S., the learned Public Prosecutor.

7. The learned counsel for the first appellant/first accused argued that even as per the prosecution case, the initial altercation was between the second accused and PW2 and the evidence of PWs 1 and 2 as against the first accused is not wholly reliable and the prosecution has failed to examine independent witness to prove the occurrence and therefore, the accused is entitled for the benefit of reasonable doubt.

8. The learned Public Prosecutor argued that the evidence of the injured, PW2, is supported by the evidence of PW1, wife of the injured and eye witness to the occurrence, and there is no material contradiction in their evidence regarding the occurrence and that their evidence is also corroborated by the medical evidence and the recovery of MO1, knife, on the basis of the disclosure statement of the first accused and therefore, the appeal is liable to be dismissed.

9. The evidence of PWs 1 and 2 shows that the incident occurred at about 10 p.m. on 06.08.2005 in front of their residence and that there occurred an altercation between PW2 and the second accused about the unauthorized sale of liquor by the second accused and then the second accused beat PW2 on the left cheek and the first accused, who rushed to the scene, stabbed PW2 with MO1 knife on the right side of the abdomen. PWs 1 and 2 identified MO1 as the knife used by the first accused to stab PW2.

10. The evidence of PW3, Casualty Medical Officer of the Medical Centre Hospital, Ernakulam, who examined PW2 at about 10.45 p.m., on 06.08.2005 and Exhibit P2, wound certificate, shows that PW2 sustained incised wound 6 x 2 cm in right lumbar region with intestine and omentum hanging outside.

11. The evidence of PW4, the Surgical Gastroenterologist of Medical Centre Hospital, Ernakulam, also shows that PW2 was admitted to the hospital in a very serious condition following the stab injury and he was subjected to major operation. PW4 also deposed that the stab injury sustained by PW2 could be caused by MO1 knife.

12. The evidence of PW10