IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE 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 whereunder 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 deceased.

The incident  appears to have taken place at about 9 p.m. on

19.7.1998. The motive therefor 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  

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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 balance.

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   

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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 other case.

......................J.       [S.B. SINHA]

.....................J                                       [ CYRIAC JOSEPH ]

New Delhi, August 28, 2008.