The main legal point established in the judgment is the requirement for satisfactory evidence to implicate the accused under Section 323 IPC, and the application of Section 34 IPC in determining guilt.

The appellants herein challenge the conviction and sentence against them under Section 323 IPC in S.C. No.263 of 2009 of the Court of Session, Kollam. Pending this appeal, the 2nd appellant died. Her death was recorded in the proceedings on production of a copy of the death certificate. Charge against the 2nd accused thus abated pending the appeal.

2. The three accused faced prosecution before the trial court under Sections 323 and 304 r/w Section 34 of the IPC on the allegation of assault made by them on one Devarajan. The deceased 2nd appellant is the direct sister of the said Devarajan. The 1st appellant is the husband of deceased 2nd appellant, and the 3rd appellant is the son.

3. The alleged incident happened on 26.01.2007 at about 3.00 pm at the Tharavadu property of the accused and the deceased. There was pending civil disputes between them at that time, concerning the properties including the Tharavadu property, wherein the alleged incident occurred.

4. The prosecution case is that, when deceased Devarajan attempted to pluck a tender coconut from one of the coconut tress, the deceased 2nd appellant pulled him down. As a result of this, he fell down and collapsed. Then all the three accused dragged him to a distance.

5. The crime in this case was registered on the basis of the statement given by the brother-in-law of the deceased. After investigation, the Police submitted final report under Sections 323, 294 (b) and 304 IPC r/w Section 34 of the IPC in the Court of learned Judicial First Class Magistrate, Karunagappally. After complying with the procedural formalities, the learned Magistrate committed the case to the Court of Session, from where it was made over to the learned 1st Additional Sessions Court, Kollam. All the three accused, pleaded not guilty to the charge framed against them under Sections 323 and 304 of the IPC.

6. The prosecution examined 13 witnesses and proved Exts.P1 to P9 documents. The defence did not adduce any oral evidence. However, Exts. D1 and D2 contradictions in the statements of the material witnesses were proved. On an appreciation of the evidence, the trial court found that Devarajan died not because of any assault made by the accused, and the cause of death was only 'Occlusive Coronary Artery Disease'. Thus the trial court found the accused not guilty under Section 304 IPC.

7. However, accepting the evidence given by the material witnesses regarding some simple assault made by the accused on the body of Devarajan, the trial court found thus guilty under Section 323 IPC, with the aid of Section 34 IPC. Accordingly, they were convicted under Section 323 IPC. The accused were sentenced to undergo simple imprisonment for two months each and to pay a fine of Rs.1000/- (Rupees One Thousand only) each. Aggrieved by the judgment of conviction dated 30.07.2012, the appellants have come up in appeal.

8. When this appeal came up for hearing, the learned counsel submitted that practically there is evidence only against the deceased 2nd appellant in this case, but the charge against her stands abated. Ofcourse as regards the exact cause of death, the prosecution has no dispute now, that Devarajan died due to Occlusive coronary artery disease, and not because of any assault made by any of the accused. Now the question is whether the conviction under Section 323 of the IPC can be sustained. Ofcourse as regards the assault made by the deceased 2nd appellant, all the material witnesses are definite and consistent.

9. PW2 to PW4 and PW6 are the material witnesses examined by the prosecution. Of them, PW2 is the sister of the deceased and PW3 is her daughter. PW4 did not fully support the prosecution. She was declared hostile and cross examined by the learned Public Prosecutor. The evidence of PW6 is only regarding the 1st part of the alleged incident, wherein deceased Devarajan fell down from the coconut tree, when pulled down by the deceased 2nd appellant. PW6 has no case that the other accused had in