Moidenkutty Vs. State
of Kerala  INSC 1449 (28 August 2008)
JURISDICTION CRIMINAL APPEAL NO. 216 OF 2005 Moidenkutty ...Appellant Versus
State of Kerala ...Respondent O R D E R This appeal is directed against the
judgment and order dated 23.9.2004 passed by a Division Bench of the High Court
of Kerala in Crl.A.No. 974/2004 whereby and where under the appeal preferred by
the appellant herein from the judgment of conviction and sentence dated
11.6.2004 passed by the Additional Sessions Court (Fast Track Court No.1),
Manjeri in S.C.No.23/2000 was allowed in part.
The deceased is the
brother of the appellant herein. They were living with their parents and sister
in the 'tharavad' house. It appears that the accused and the appellant were
living in different premises only at a little distance.
The house of the
accused-appellant is closer to their family house than the house of the
The incident appears
to have taken place at about 9 p.m. on 19.7.1998. The motive there for is said
to be not only a property dispute between the brothers but also discovery by
the appellant that the deceased-Hussain peeped into the bathroom where the
daughter-in-law of the accused-appellant was taking bath. It is also alleged in
the First Information Report that in regard to the said incident the -1- wife
of the appellant had quarrelled with the deceased. The appellant had asked the
deceased not to enter into his house resulting in an altercation. However, they
were separated at that time by their father.
It appears from the
records that for serving dinner to his parents he came late on that date with
some sweets and placed the same on the doorsteps of the house. The deceased
again started quarrelling with the accused asking as to why he was asked not to
enter his house. He caught hold of the collar of the accused and made attempts
to assault him with a stick, which was concealed under his shirt. Allegedly, at
that point of time, the appellant stabbed him twice resulting in his death.
The father of the
appellant died during pendency of the matter before the trial Court. The
mother(P.W.1) of the appellant, who was examined by the prosecution was
declared hostile. The sister of the appellant appears to have lost her mental
Although, the mother
of the appellant was declared hostile and despite the fact that no other person
had witnessed the occurrence, a judgment of conviction and sentence for
commission of an offence under Section 302 I.P.C. was recorded by the Addl. District
& Sessions Judge(Fast Track Court), Manjeri.
The High Court,
however, in an appeal preferred by the appellant opined that from the materials
on record it was evident that the deceased had been waiting with a stick in the
'tharavad' house for the accused to come and when he came, he wanted to assault
him and as the incident had happened at that point of time, the appellant
committed an offence under Section 304 Part 1 I.P.C. On that finding -2-
conviction and sentence under Section 302 I.P.C. was set aside. The High Court
sentenced him to undergo rigorous imprisonment for ten years and to pay a fine
of Rs. 5,000/-.
Although, the State
has not preferred any appeal against the judgment of the High Court, we have
been taken through the materials on record and keeping in view the facts and
circumstances of this case, we do not find any reason to differ with the view
of the High Court.
The only question
which arises for consideration is the quantum of sentence.
It is stated at the
Bar that the appellant has been in custody for about five years. We, therefore,
are of the opinion that the interest of justice would be subserved if the
appeal is allowed in part modifying the sentence to the period already
undergone by the appellant. It is directed accordingly. If the appellant is in
custody, he may be released forthwith unless wanted in connection with any
[ CYRIAC JOSEPH ]