Point of Law: If intention of accused was limited to infliction of a bodily injury sufficient to cause death in ordinary course of nature and did not extend to intention of causing death, offence would be murder.

JUDGMENT :

(C.S. Sudha, J.)

1. This appeal under Section 374(2) Cr.P.C. by the sole accused in S.C.No. 919/2012 on the file of the Court of Session, Kollam has been filed through the Superintendent, Central Prison, Thiruvananthapuram under Section 383 Cr.P.C. challenging the conviction entered and sentence passed against him for the offence punishable under Section 302 IPC.

2. The prosecution case as stated in the charge sheet is as follows – the deceased Vishnu is the son of the accused and PW7. On 21/07/2012 the accused had a quarrel with PW7, his wife, in which quarrel Vishnu intervened. This resulted in a scuffle between the accused and his son. Due to this enmity, the accused, with the intention of murdering his son, at 08.15 p.m., stabbed Vishnu with MO.1 tapping knife on the left side of his neck causing a grievous injury. The accused then pulled out MO.1 knife and beat Vishnu on the top of his head causing another injury. Vishnu thereafter succumbed to the grievous injuries sustained by him. The place of occurrence is the steps leading to the house where the accused was residing with his family.

3. Based on Ext.P1 FIS of PW1, crime no.799/2012, Thenmala police station, that is, Ext.P1(a) FIR for the offence punishable under Section 302 IPC was registered by PW10, the then Sub Inspector of the aforesaid station. PW12, the then Circle Inspector Kulathupuzha, the Investigating Officer (I.O.) in the case conducted the investigation and submitted the charge sheet before the court.

4. On the final report being submitted, the jurisdictional magistrate, after complying with the statutory formalities, committed the case against the accused to the Sessions Court, which court took the case on file as S.C.No.919/2012. On the appearance of the accused before the Court of Session, he was furnished with the copies of all the prosecution records. On 23/09/2015, the trial court framed a charge for the offence punishable under Section 302 IPC, which was read over and explained to the accused to which he pleaded not guilty.

5. The prosecution examined PWs.1 to 12 and got marked Exts.P1 to P18 and MO.1 to MO.6. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all these circumstances and maintained his innocence.

6. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence has been adduced by the accused. Exts.D1 to D5 are the contradictions brought out in the testimony of the prosecution witnesses.

7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence punishable under Section 302 IPC and hence has sentenced him to imprisonment for life and to a fine of Rs.25,000/-and in default of payment of fine, to undergo rigorous imprisonment for a period of four months. The accused has been granted the benefit of set off under Section 428 Cr.P.C.

8. The only point that arises for consideration in this appeal is whether the conviction entered, and sentence passed against the accused by the trial court is sustainable or not.

9. Heard Sri.K.Sudhinkumar, the learned counsel for the appellant and Sri.E.C.Bineesh, the learned Public Prosecutor.

10. The fact that Vishnu, the son of the accused and PW7 died in the incident is not disputed. The dispute is regarding the way he sustained the injuries. PW12, the I.O., deposed that on 22/07/2012 he had taken over the investigation in the case, proceeded to the place of occurrence at 08:00 a.m. and had prepared Ext.P7 inquest report. PW6 is an attestor to Ext.P7 inquest report.

10.1. P