An appellate court must consider the merits of a case before dismissing an appeal for non-representation, and intent coupled with an overt act is essential for conviction under Section 307 IPC.

ORDER

This Criminal Revision Petition has been filed under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 , challenging the judgment in Crl.A.No.98/2021 on the files of the Additional Sessions Court-V, Kollam, arising out of judgment in S.C.No.919/2013 on the files of Additional Sessions Court, Kottarakkara.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail.

Perused the relevant documents

3. In a nut shell, the prosecution allegation is as under:

The accused, who married the victim on 22.08.2003, while they were residing at the house bearing No.XVI/43 belongs to victim, situated at Nadukkunnu, Keezhattur, Edamulackal Panchayat, used to harass her by demanding more dowry, both mentally and physically. Later, the accused was expelled from that house. Again, consequent to the intervention of mediators, the dispute was compromised and the accused started to live along with the victim at her house. While so, on 24.12.2012 at about 2.15 a.m, when the victim was sleeping at her room in the middle portion of the house, the accused caught hold of her neck and cut her throat with a knife with intent to kill her, suspecting that the victim had extramarital affairs. As a result, she sustained grievous injuries on her throat. Thus, the prosecution would allege that the accused had committed the offences punishable under Sections 498A and 307 of the Indian Penal Code (‘ IPC ’ for short).

4. The learned Assistant Sessions Judge proceeded with trial after completing pre-trial formalities. Thereafter, PW1 to PW15 were examined and Exts.P1 to P16 were marked on the side of the prosecution. M.Os 1 to 4 were also marked. Ext.D1 was also marked on the side of the defence. Then the accused was questioned under Section 313 (1)(b) of the Criminal Procedure Code (`Cr.P.C’ for short) and provided opportunity to adduce defence evidence, but no evidence adduced. Trial court raised the following points for determination:

(1) Whether the accused had subjected CW2 to cruelty and thereby committed the offence punishable under Section 498A of IPC ? (2) Whether the accused had attempted to murder CW2 and thereby committed the offence punishable under Section 307 of ?

(3) Whether the prosecution has succeeded in establishing the guilt of the accused beyond the shadow of any reasonable doubt?

(4) If so, what is the sentence or order?

5. Thereafter on meticulous evaluation of the evidence along with the injuries sustained, as shown in Ext.P5 wound certificate, the learned Assistant Sessions Judge found that the accused committed offence punishable under Section 307 of IPC , while acquitting him for the offence punishable under Section 498A of . Accordingly, he was convicted and sentenced for the offence punishable under of .

6. Though appeal was filed challenging the said conviction and sentence, the learned Additional Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court. 7. While arguing to upset the concurrent verdicts of conviction as well as sentence imposed by the trial court and confirmed by the appellate court, the learned counsel for the petitioner would submit that the appellate court disposed of the appeal without hearing the appellant/revision petitioner herein and, therefore, the revision petitioner was not in a position to argue the point which would support his case before the first appellate court. He argued further that going by the evidence adduced, the trial court as well as the appellate court relied on the evidence of PW2, the victim, as well as PW3, the daughter of the accused, apart from Ext.P5 wound certificate, without proof of the same.

8. Inasmuch as the question as to whether there is any illegality committed by the appellate court in disposing the appeal on merits without hearing the appellant or without appointing an Amicus Curiae is concerned, the law is well settled.

9. In the decision reported in [ 2023 KHC OnLine 723