IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 2^ND DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944 CRL.A NO. 2740 OF 2008 AGAINST THE JUDGMENT DATED 29.10.2008 IN SC 123/2007 OF ADDITIONAL SESSIONS COURT (ADHOC) III, MANJERI APPELLANT/ACCUSED:

RAJAN PUTHIYAVEETTIL HOUSE, VEETTILAPPARA, MALAPPURAM DISTRICT.

BY ADV SRI.BABU S. NAIR RESPONDENT/STATE:

THE STATE OF KERALA THE SUB INSPECTOR OF POLICE, ARECODE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. SRI. SANAL P RAJ, PP THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 16.08.2022, THE COURT ON 02.09.2022 DELIVERED THE FOLLOWING:

JUDGMENT

This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is filed by the accused in S.C.No.123 of 2007 on the file of the Additional Sessions Judge [Fast Track Court- III (Adhoc)], Manjeri. He was convicted and sentenced for an offence under Section 308 of the Indian Penal Code, 1860. The sentence imposed is rigorous imprisonment for two years and to pay a fine of Rs.2,000/- with a default sentence of rigorous imprisonment for one month. The fine was directed to be paid as compensation to the victim.

2. The appellant was tried on the charge that he, out of previous enmity, stabbed PW1 at his belly and at the back, using a knife with the knowledge that the injury may cause his death, at 8.30 p.m. on 09.04.2006 at the mud-road near the house of PW1, which is situated at Cheenkannipalam in Vettilappara Village.

3. The Additional Sessions Judge, after considering the evidence on record and the oral testimonies of PWs.1 to 10, Exts.P1 to P7 and also Exts.D1 to D8, came to the conclusion that the appellant did commit the act of stabbing PW1 and that he has the knowledge that the injury he inflicted may cause death of PW1. Finding that the prosecution has succeeded in proving its case, the court below convicted and sentenced the appellant as per judgment dated

29.10.2008.

4. On 21.11.2008, this appeal was admitted. The sentence imposed on the appellant was suspended and he was granted bail, subject to the conditions contained in the order in Crl.M.A.No.11588 of 2008.

5. The appellant assails his conviction on more than one ground. The learned counsel appearing for the appellant would submit that the solitary evidence of PW1, the injured, should not have been acted upon by the court below, in the absence of any independent evidence. The learned counsel concedes that there was no illegality in entering a conviction on the basis of the evidence of injured alone. However, it is urged that the evidence should be creditworthy. Here, the evidence of PW1 does not inspire confidence, inasmuch as it runs contrary to Ext.P1 and medical evidence. Non- examination of Sri.Joseph, who according to the prosecution, is the person who accompanied PW1 to the hospital and also failure of PW7, the mother of PW1, to give any res gestae evidence discredit the veracity of the evidence brought in through PW1. It is also pointed out that the version in Ext.P1 F.I.statement is not in conformity to the oral testimony of PW1 in court. Further, the medical evidence does not tally the direct evidence and that also is a reason to fail the prosecution, according to the learned counsel appearing for the appellant.

6. The learned Public Prosecutor, on the other hand, would contend that having the incident taken place during night and no occurrence witness available, the evidence of PW1 has to be given special treatment. It is contended that the injury sustained by PW1 agree to his version regarding the manner in which the incident took place. When it is established that the appellant has enough motive to assault PW1, the oral testimony of PW1, even without support from any independent corroboration, can be acted upon to reach the conviction.

7. PW1 was returning home from the house of his friend Satheesh. The appellant was walking in front. PW1 passed on. The appellant then started abusing him.