Point of Law: Speaking generally 'culpable homicide' sans 'special characteristics of murder' is 'culpable homicide not amounting to murder'.

JUDGMENT :

In this appeal filed under Section 374(2) Cr.P.C., the appellant, the accused in S.C.No.344/2005 on the file of the Sessions Court, Kozhikode, challenges the conviction entered and sentence passed against him for the offence punishable under Section 304 Part II IPC.

2. The prosecution case is that the accused with the intention of causing the death of one Harish, a physically challenged person and with the knowledge that his act would cause the death of the latter, on 06/03/2004 at 9 p.m., while Harish was sitting inside the autorickshaw of PW6, pulled him out of the vehicle as a result of which, Harish fell down on the road resulting in grievous injury to his spinal cord. While under treatment, the injury led to the onset of pneumonia which aggravated, resulting in his death on 21/04/2004 at 12.30 a.m. Hence the accused is alleged to have committed the offence punishable under Section 302 IPC.

3. On the basis of Ext.P7 FIS of Harish recorded by PW12, the Head Constable of Panniyankara Police Station, registered Ext.P8 FIR, i.e., Crime No.45/2004 on 17/03/2004 at 18.15 hours alleging commission of the offences punishable under Sections 341 and 323 IPC. PW13, another Head Constable of Panniyankara Police Station who is stated to have conducted the preliminary investigation, found the offence under Section 325 IPC to have been committed. Hence, as per Ext.P9 report, the case was converted to one under Section 325 IPC. Thereafter on the death of Harish, PW14, the then S.I., Panniyankara Police Station, who is stated to have verified the investigation conducted by PW13, submitted Ext.P10 report adding Section 302 IPC. PW15, the then C.I., Kasba, is stated to have completed the investigation and submitted the final report alleging the offence punishable under Section 302 IPC.

4. On appearance of the accused before the court below, copies of all the prosecution records were served on him. On 27/08/2005 the court below framed a charge for the offences punishable under Sections 323 and 302 IPC, which was read over and explained to the accused to which he pleaded not guilty. The prosecution examined PWs.1 to 17 and got marked Exts.P1 to P14 in support of their case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. He denied those circumstances and maintained his innocence. He also submitted a statement in writing in which he contends that he is a sympathizer of CPI(M) and hence there is political rivalry with the Congress party. The person responsible for the death of Harish is one Rajan from Nallakath. However, the Congress party workers of Panniyankara, influenced the police and has succeeded in getting the false case registered against him.

5. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C., the accused was asked to enter on his defence and adduce evidence in support thereof. No oral evidence was adduced by the accused. Ext.D1 is the contradiction brought out in the testimony of PW16.

6. On a consideration of the oral and documentary evidence and after hearing both sides, the court below by the impugned judgment, convicted and sentenced the accused to rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-for the offence punishable under Section 304 Part II IPC and in default of payment of fine, to undergo rigorous imprisonment for one year. The accused has also been sentenced to pay a fine of Rs.1,000/-for the offence punishable under Section 323 IPC and in default of payment of fine, to undergo rigorous imprisonment for two months. It has also been directed that if the fine amount is realised, Rs.10,000/-shall be given to the heirs of the deceased. The sentences have been directed to run concurrently. Set