JUDGMENT

Dated this the 25th day of November 2020 ...

The appellant is the accused in Sessions Case No.161 of 2005 on the file of the Additional District and Sessions Judge, Fast Track Court (Adhoc)-II, Kottayam.

2. The above case is charge sheeted by the Sub Inspector of Police, Marangattupally against the appellant alleging offences punishable under Sections 308 and 324 IPC. 3. The prosecution case in brief is as follows: On 31.12.2004 in the evening the accused and the injured with their friends decided to celebrate New Year by eating and drinking. The case of the prosecution is that, they purchased one bottle of rum, porottas and four plates of meat curry which they shared in the room of the accused. In the end at 6.30 p.m., the accused demanded PW2 Soji to bear the price of one porotta more. There was a quarrel over this between the accused and PW2. PW3 sided PW2 which irritated the accused. Thereupon, the accused took a knife and brandished it at PW3 who suffered injuries. PW2 intervened and caught hold of the knife which caused injury on his palm. Thereafter, accused Sura left the room. PW2 and PW3 proceeded to the nearby Karunya Hospital and the wound on the hand was sutured. They had no intention to lodge a case against the accused. After dressing the wounds, they came back. PW2 moved to Vayala junction for smoking a cigarette and PW3 and CW4 Thankachan were talking in front of C.I.T.U. Office. The further case of the prosecution is that, PW2 was standing and smoking at a small distance from the junction and then unexpectedly the accused came from behind and stabbed PW2 on his belly and thereby attempted to commit culpable homicide. It is said that by holding the intestines that was protruding out to his hands, PW2 came and told PW3 that, he was stabbed by the accused. PW2 was taken to Medical College Hospital, Kottayam from where PW5, Lecturer in Surgery, examined him and noted the injuries in Ext.P3 wound certificate. Hence it is alleged, the accused committed the said offence.

4. To substantiate the prosecution case, the prosecution examined PW1 to PW10. Exhibits P1 to P8 are the documents marked on the side of the prosecution. D1 and D2 are the defence exhibits. MO1 to MO3 are the material objects.

5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Sections 324 and 308 IPC. The accused is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/- under Section 308 IPC. In default of payment of fine he is directed to undergo rigorous imprisonment for six months. The accused is further directed to undergo rigorous imprisonment for six months under Section 324 IPC. If the fine amount is realized, there is a direction to pay the same to PW2.

6. Heard the learned counsel for the appellant and the learned public prosecutor.

7. The learned counsel for the appellant submitted that, even if the entire prosecution case is accepted, the offence under Sections 324 and 308 IPC is not made out. The counsel submitted that, a reading of the evidence available in this will show that, the incident is not happened as alleged by the prosecution. The counsel submitted that, according to the prosecution, there are two parts in the incident. First incident happened in the residential place of the accused and the second incident happened at Vayala junction. The counsel submitted that, according to PW2, when he was smoking in front of the shop of one Gopi, the accused attacked him. The counsel submitted that, a perusal of the scene mahazar, there is no such shop of Gopi. The counsel submitted that, that itself shows that, the prosecution is not coming forward with a genuine case. The counsel also submitted that, the weapon which is allegedly used for committing the offence is not recovered in this case. The counsel also submitted that, according to the prosecution, as per scene mahazar, several articles were recovered from the house of the acc