Point of Law: Prosecution has succeeded in establishing that accused has committed offence under Section 294(b) IPC cannot be found to be correct and hence needs interference.

JUDGMENT :

The appellant, the accused in S.C.No.220/2005 on the file of the Additional Sessions Court, Ad hoc-1, Kottayam, challenges in this appeal filed under Section 374(2) Cr.P.C., the conviction entered and sentence passed against him under Section 294(b) and Section 304 Part II IPC.

2. The prosecution case as revealed from the final report is as follows :

The accused with the knowledge that the deceased, namely, Kuttappan @ Achayan, aged 60 years, is a chronic cardiac patient, on 27/06/2004 at 5.30 p.m. in the pathway situated in Udayagiri Colony, Alamparappu, Koovappalli Village, abused him by calling him obscene words and pushed him down, as a result of which Kuttappan suffered a cardiac arrest. Kuttappan breathed his last while being taken to the Government Hospital, Kanjirappalli. Hence the accused is alleged to have committed the offence punishable under Section 304 IPC.

2.1. Ext.P1 FIS of PW1 was recorded on the same day at 7.45 p.m. by PW10, the then Assistant Sub Inspector, Kanjirappalli Police Station. On the basis of Ext.P1 FIS, Ext.P1(a) FIR, that is, Crime No.201/2004 of the aforesaid Station, was registered on the same day under Section 174 Cr.P.C. for unnatural death. PW1 and PW12, the then Sub Inspector, Kanjirappalli Police Station and the then C.I. Kanjirappalli, are the investigating officers who completed the investigation and submitted the final report alleging that the accused has committed the offences punishable under Sections 294(b) and Section 304 IPC.

3. When the accused was produced before the court below, he was served with the copies of all the prosecution records. As the accused was unable to engage a defence lawyer, legal assistance was provided by engaging a defence lawyer who represented the accused in the proceedings before the court below. On 08/12/2005 the court below framed a charge under Section 294(b) and Section 304 Part II IPC, which was read over and explained to the accused, to which he pleaded not guilty. The prosecution examined PWs.1 to 12 and got marked Exts.P1 to P10 and M.Os.1 to 3 in support of their case. CWs.3 and 4, the occurrence witnesses; CWs.7 and 8, the children of the deceased and attestors to the inquest report; CWs.9 and 10, the persons who took the deceased to the hospital ; CWs.11 to 15 who are stated to have come to the scene on hearing about the incident and had seen the deceased being taken to the hospital ; CWs.16 and 17 attestors to the inquest report ; CW18 an attestor to the scene mahazar and CW24, a doctor of District Hospital, Kottayam, who is stated to have treated the deceased for heart ailment and issued treatment certificate, are seen given up by the prosecution.

4. After close of the prosecution evidence, the accused was questioned under Section 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances that appeared in the evidence of the prosecution. He denied those circumstances and maintained his innocence. He has also submitted a statement in writing in which he contends that on 27/06/2004 in the evening, on his return home from work, he saw Karaplackal Vijayan and Kuttappan, the deceased, in a conversation. Suddenly he saw Kuttappan falling down. Under the impression and belief that Vijayan had done something to the deceased, he rushed towards both of them. Hearing his cry, people of the locality rushed to the scene, then the said Vijayan quickly walked away. Seeing this, he had pursued Vijayan. He had then seen the people who had gathered there lifting Kuttappan who was lying on the ground.

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 or documentary evidence was adduced on behalf of the accused.

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 undergo rigorous imprisonme