JUDGMENT

B.P. Singh, J.-The appellant herein was put up for trial before the Additional Sessions Judge, Kottayam Division in Sessions Case No. 68 of 1994 charged of an offence punishable under Section 302 I.P.C. for having committed the murder of the deceased Joseph @ Ouseppachen at about 8.15 p.m. on 25th March, 1994. The trial Court accepting the evidence produced by the prosecution found the appellant guilty of culpable homicide. In the facts and circumstances of this case it held that though the deceased died as a result of the injuries sustained by him, it could not held that the appellant stabbed him with the intention of killing him. He, therefore, convicted the appellant for the offence punishable under Section 304 I.P.C. Part I and sentenced him to 8 years rigorous imprisonment. The appellant preferred an appeal before the High Court of Kerala at Ernakulam being Criminal Appeal No. 93 of 1996 A. The High Court by its impugned judgment and order of 20th July, 2001 dismissed the appeal. The appellant has appealed to this Court by Special Leave.

2. PW 1, the brother of the deceased lodged the F.I.R. which was recorded by Sub-Inspector, PW 10 on 25th March, 1994. PW 1 is not an eye witness but he was told about the incident by PW 2 who according to the prosecution had accompanied the deceased when the occurrence took place. PW 1 went the place of occurrence and found the deceased lying in an injured condition. He arranged for his removal to the hospital, but on reaching the hospital the deceased was declared dead. Thereafter he went to the police station and lodged the report in the night of 25th March, 1994.

3. The prosecution examined before the Trial Court three alleged eye witnesses namely PWs 2, 3 and 4. PWs 2 and 4 did not support the case of the prosecution. PW 3, however, deposed as an eye witness and fully supported the case of the prosecution. The conviction of the appellant is solely based upon the testimony of PW 3 which finds corroboration from the medical evidence on record.

4. PW 1 is not an eye witness. It is not necessary to discuss his evidence in detail. Suffice it to say that he lodged the FIR but he did not mention therein the name of PW 3 as an eye witness. In the FIR reference was made to the effect that PW 2 had accompanied the deceased on the fateful night when the occurrence took place. PW 4 who is no other than the wife of the accused did not support the prosecution case about having seen the occurrence.

5. Counsel for the appellant submitted before us that the conviction of the appellant which is based solely upon the testimony of PW 3 is not justified when the circumstances of the case establish that he had not witnessed the occurrence and had falsely deposed in favour of the prosecution.

6. PW 2, Varghese @ Thankachan deposed that the deceased was his mother s brother, namely his maternal uncle. He also knew the accused who lived in the same locality. However, he had not seen the occurrence leading to the death of deceased. The witness was declared hostile and was cross-examined at length. In his cross-examination, he stated that on 25th March, 1994 at about 7.30 p.m. he and the deceased went to a liquor shop where the deceased consumed arrack. They were in liquor shop for about 10 minutes and thereafter they came out of the shop. The deceased invited him to his house for a meal. Both of them proceeded towards the house of the deceased. At that time the deceased had a burning candle with him. For going to the house of the deceased one has to pass in front of the house of the accused. While they were going to the house of the deceased, the deceased told him that he had to talk to the accused and the deceased thereafter went to the front-yard of the house of the accused while PW 2 proceeded ahead. When he had gone about 20 feet ahead he heard a scream coming from the direction of the house of the accused. He immediately ran towards the house of the deceased and informed the family members about the i