Judgment

VAIDIALINGAM, J. :- The first accused in this appeal by special leave challenges the judgment and order dated 19-8-1971 of the High Court of Kerala confirming his conviction for an offence under Section 302, Indian Penal Code as well as the sentence of death imposed upon him for the said offence. The appellant, along with four others, was tried by the learned Sessions Judge of Trichur for an offence under Sections 302, 143 and 201 of the Indian Penal Code. The charges against the accused were that on April 13, 1970, at about 11.00 p. m. they formed themselves into an unlawful assembly with the common object of committing the murder of one Divakaran Nair and to cause disappearance of evidence punishable under Section 143 and that on the same day all of them, with the intention of committing the murder of the said Divakaran Nair, beat and fisted him and threw him in the courtyard of the house of the appellant and thereby caused his death. It is further alleged that the appellant and the second accused accused tied the hands and feet of the said Divakaran Nair and that the appellant poured poison into his mouth with the intention of causing his death and, with a view to cause evidence of the offences committed by them to disappear, they carried the body of Divakaran Nair and left it near the railway line.

2. The prosecution case was that the appellant with the help of the other accused and P. W. 4 was running a brothel in his house situated on the Trichur Shoranur road. On April 13, 1970, the deceased, Divakaran Nair, visited the brothel and spent a couple of hours with P. W. 4. As Divakaran Nair overstayed the stipulated period, the appellant and the other accused got annoyed and, after beating and fisting Divakaran Nair, carried him from the room and threw him in the courtyard. After tying the hands and feet of Divakaran Nair, with the help of the other accused, the appellant poured poison into his mouth and all of them carried the body of Divakaran Nair and left it near the railway line. As a result of being thrown on the ground Divakaran Nair sustained injuries to the skull and he died shortly thereafter.

3. The prosecution relied on the evidence of P. Ws. 3, 4, 7 and 9 as well as the statements of two other persons evidenced by Exts. P-25 and P-26. The learned Sessions Judge accepted the above evidence and held that the appellant and the three other accused had together attacked Divakaran Nair and threw him on the ground which caused him an injury to the skull as a result of which he died, and hence, it was further held that the said accused were guilty of an offence punishable under Section 302. The learned Sessions Judge further held that the administration of poison by the appellant to the deceased was also an offence under Section 302. The learned Sessions Judge sentenced the appellant to death. However, the other three accused were sentencd to life imprisonment. The fifth accused was, however, found guilty only of the offence under Sections 143 and 201 and was sentenced to rigorous imprisonment for three months and one year respectively. Though the appellant and accused 2 to 4 were also found guilty of the offences punishable under Sections 143 and 201, Indian Penal Code, no separate sentences were passed for those offences. The High Court, on appeal by all the accused, agreed with the findings of the Trial Court and confirmed their conviction and also the sentence.

4. As mentioned earlier, only the first accused has come to this Court and the other accused are not before us. Mr. Ramchandran, appearing as amicus curiae counsel for the appellant, has attacked the finding of guilt recorded against his client both by the learned Sessions Judge and the High Court.

5. The first contention of Mr. Ramachandran was that almost all the witnesses have turned hostile and ultimately the conviction has been rested substantially on the evidence of P. W. 3. According to the learned counsel it is not safe to base a conviction for m