IMPORTANT POINTS
Whether the appellant had the intention to kill the victim as alleged by the prosecution. Admittedly, no weapon is used in the case. Evidence clearly shows that the appellant stamped the victim multiple times on his chest and that resulted in fracture of his ribs. It is also in evidence that the victim went to his home and was there till he was found dead. It is also in evidence that the victim did not attempt to go to a hospital for getting medical attention. Even PW1 stated that he had a conversation with the appellant after the incident. The case was registered as one under Section 174 of Cr.P.C initially. The facts and circumstances of the case and the evidence on record did not show any pre-meditation or intention on the part of the appellant to commit murder of the victim. The hurt inflicted on the victim was a grave one and it can be seen that no weapon of offence is used. Court below seriously erred in finding the appellant guilty under Section 302 of I.P.C.

Shaffique, J.

This appeal has been preferred by the appellant challenging the verdict of the 1st Additional Sessions Judge, Mavelikkara in S.C.No. 847/2011 dated 29/01/2013 by which the appellant is found guilty for offences under Sections 302, 341 and 323 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to undergo imprisonment for life and to pay a fine of `35,000/- (Rupees Thirty Five Thousand only) with a default stipulation of rigorous imprisonment for two years for offence under Section 302 of I.P.C. and also sentenced to suffer simple imprisonment for six months for offence under Section 341 of I.P.C. No separate sentence is awarded for offence under Section 323 of I.P.C. All sentences were directed to run concurrently.

2. The case of the prosecution is as follows:

The deceased Balakrishna Pillai is the father of PW1, who is the de facto complainant. On 16/05/2011, at 07.15 P.M., the appellant herein, due to his previous enmity towards Balakrishna Pillai, with an intention to do away with him, wrongfully restrained him at about 400 metres north of Moorthitta Junction Mannar- Vallakkalil Road, Ward No.IV of Mannar Panchayath, Pavukkara Muri, Kurattisseri Village and slapped him on both cheeks as a result of which the victim fell down. Thereafter the appellant kicked on the chest of the victim with his foot wearing a hawai chappal three to four times by uttering “you need not live hereafter”. The victim tried to resist the same by turning upside down, but the appellant again kicked the victim, which resulted in fracture of 2nd to 4th ribs on the left side and 2nd to 5th ribs on the right side. On 17/05/2011 between 11.00 A.M and 06.00 P.M, the victim died.

3. The case has the history as detailed herein:

Initially, based on the statement given by PW1, the case was registered under Section 174 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') as Crime No. 248/2011. Subsequently, a report was filed by the police altering Section 174 and substituting Sections 341, 323 and 306 of I.P.C. Again, the investigating officer concerned altered the Section to one under Section 302 by deleting 306 of I.P.C. by filing another report.

4. Evidence adduced in the case, in short, are as follows:

PW1 is the son of the deceased. He gave Ext.P1 FIS to police based on which Ext.P1(a) FIR was registered. PW2 to PW5 are cited as occurrence witnesses. PW6 turned hostile to the prosecution. PW7 to PW9, PW11 and PW18 are attestors to different columns in Ext.P3 inquest report. PW12 is the attestor to Ext.P5 scene mahazar where the deceased was assaulted. MO5 shirt was identified by him. PW13 is the daughter of the deceased. PW14 is the wife of the deceased. PW15 is the Village Officer, Perattissery who prepared Ext.P6 scene plan. PW16 is an attestor to Ext.P2 mahazar prepared at the time of recovering the chappal worn by the appellant at the time of incident. PW10 proved Ext.P4 certificate and report. PW17 is the Doctor who conducted post-mortem examination of the victim and issued Ext.P7 certificate. PW19 is the then S.I. of Police, Mannar who recorded Ext.P1 FIS given by PW1. He conducted the inquest and prepared Ext.P3 report. He proved Exts.P1, P1(a), P9, P10 and P5 scene mahazar. PW20 produced Ext.P12 FIR register, Ext.P13 report and order on it which is Ext.P13(a), Ext.P15 property register and the relevant entries therein. She also identified MO3 to MO5. PW21 is the C. I. Of Police, Mannar who completed the investigation and laid the charge-sheet against the appellant herein.

5. Defence has a definite case that the death of Balakrishna Pillai was a suicide by poisoning. During cross-examination, they also presented a case that it was PW1 who inflicted injuries on the deceased during a fight between them. Per contra, the prosecution alleged that death of the victim was a homicide which resulted from the stamping on the chest of the deceased by the appellant herein due to which seven ribs of the deceased were frac