IMPORTANT POINT
The court determined that the prosecution failed to prove homicide beyond reasonable doubt, leading to a conviction under Section 325 IPC instead of Section 304 Part II IPC.

JUDGMENT :

P.V. BALAKRISHNAN, J.

Criminal Appeal No.1462/2018 is filed by accused Nos. 1 to 3 in SC No.158/2016 challenging their conviction and sentence imposed under Section 304 Part II and Section 447 read with Section 34 IPC by the Additional Sessions Court–II, Kollam. Criminal Appeal No.26/2019 is filed by the wife of deceased Thampachan(PW1) under Section 372 proviso of Cr.P.C., aggrieved by the conviction of the accused for a lesser offence. A conspectus of the Prosecution case

2. Accused Nos.1 and 2 are neighbours of deceased Thampachan. On 6/12/2013 at 8.45 pm, there occurred a spat between Thampachan and the third accused at a place near the hospital junction. At that time, Thampachan slapped the third accused on his face. In order to exact revenge, on 6/12/2013 at about 9.45 pm at a place called Thrippalazhikom, accused Nos. 1 to 3 conspired together to murder Thampachan. In pursuance of the conspiracy, at about 10 pm on the same day, the third accused went to the house of Thampachan and called him outside. When Thampachan came out, accused No.3 gave him a blow using a wooden stick. Then accused Nos. 1 and 2 also joined the attack and all of them together beat Thampachan using wooden sticks. When the family members and locals intervened, the accused left the scene. Even though the relatives of Thampachan persuaded him to avail medical aid, he refused. On the next day at about 7.10 am, accused Nos. 1 and 2 trespassed into the courtyard of the house of Thampachan and slapped him on his face. Thereafter, Thampachan was taken to Taluk Hospital, Kottarakkara and after five days of treatment there, referred to the Medical College Hospital, Thiruvananthapuram. On 11/10/2013, at about 22.30 hours, Thampachan breathed his last. Hence, the prosecution alleged that the accused have committed the offences punishable under Sections 120B, 447 & 302 read with Section 34 IPC.

Proceedings before the trial court

3. In order to prove the prosecution case, PW1 to PW23 were examined and Exts. P1 to P33 and MO1 to MO3 were marked. Ext.D1 contradiction was also marked through PW1 by the defence. On examination under Section 313 Cr.P.C,the accused denied all the incriminating circumstances appearing against them in evidence and contended that they were innocent. From the side of the accused, DW1 was examined. The trial court, on an appreciation of the evidence on record, found the accused not guilty of the offences punishable under Section 302 r/w Section 34 and Section 120B IPC. But, it found all the accused guilty of committing the offences punishable under Section 304 Part-II read with Section 34 IPC and convicted them thereunder. It also found the first and the second accused guilty of committing the offence punishable under Section 447 read with Section 34 IPC and convicted them thereunder. The trial court sentenced accused Nos. 1 to 3 to undergo rigorous imprisonment for four years each and to pay a fine of Rs.50,000/- each under Section 304 Part II read with Section 34 IPC. In case of default, the accused were ordered to undergo rigorous imprisonment for a further period of three months each. It also sentenced accused Nos. 1 and 2 to undergo simple imprisonment for one month each and to pay a fine of Rs.500/- each under Section 447 read with Section 34 IPC. In case of default, they were ordered to undergo simple imprisonment for a further period of five days each. From the fine amount, an amount of 1,00,000/- was ordered to be paid as compensation to PW1 under Section 357(1)(b) Cr.P.C.

A compendium of the Prosecution evidence

4. PW1 is the wife of the deceased Thampachan. She deposed that on 6/12/2013 at about 8.pm, her husband had gone to a place called Aashupathri Mukku and there, had met the third accused. A verbal duel occurred between them and when the third accused uttered abusive words, Thampachan clouted him. Thampachan came back and told her about the incident. Later, in the evening she saw the first and the third accused in a