Accused cannot be held guilty of murder.

BALAKRISHNAN, J.

Appellants are direct brothers and they were found guilty by the Court of Session, Thrissur for the offence punishable under S. 302, r/w. S. 34, I.P.C. for allegedly causing the death of their paternal uncle-Lonappan. Though the incident happened on 29-9-81, these appellants were tried after a period of eleven years, owing to the delay in filing final report by the investigating agency.

2. It is alleged by the prosecution that there were property dispute between deceased-Lonappan and the father of the appellants. On the date of the incident deceased-Lonappan woke up at about 6 a.m. and was proceeding to the latrine situated in a corner of the property to answer the call of nature. These appellants armed with stick, axe handle and spade handle confronted him and beat on various parts of his body. He made an outcry and PW 2, his daughter, who was then only seven years old, came to the fathers side. The injured asked for water and the child got a cup of water but the injured could not gulp the same and a spoon was brought and some water was given to the injured. The child was asked to inform the matter to others. PW 2 went to her paternal uncle and informed him of the incident. PW 1 also came there and injured Lonappan was removed to District Hospital, Thrissur where he succumbed to the injuries at about 9.15 a.m.

3. PW 1 went to Peramangalam Police Station and gave Ext. P1 F.I. Statement. PW 7 the Head Constable, recorded the statement and PW 10, the Circle Inspector, took over the investigation on the same day and held inquest over the dead body. According to the prosecution there was postmortem examination (but no report was filed in Court) by the Doctor attached to District Govt. Hospital, Thrissur. PW 10 after the investigation did not file final report in time. He took about 11 years to file final report and ultimately the case was committed to the Court of Session in 1991 and numbered as Sessions Case No. 34 of 1992 on the file of Addl. Sessions Court, Thrissur. 10 witnesses were examined on the side of the prosecution. Sessions Court relied on the evidence of PW 2, the sole eye-witness and held that the accused committed the offence punishable under S. 302 read with S. 34, I.P. C. The conviction is challenged by the appellants on various grounds.

4. The main argument put on the forefront of the submissions of Shri M. N. Sukumaran Nair, counsel for the appellants is that there is no evidence in this case to prove the cause of death of the deceased and as there is no evidence to prove that the deceased Lonappan died of the injuries sustained by him on the fateful day, and, therefore, the conviction under S. 302, I.P.C. is not sustainable. Learned counsel also submitted that the manner in which the evidence of PW 2 was recorded was quite improper and there was unfair trial so far as the accused were concerned and, therefore, the evidence of PW 2 should not have been accepted as a foundation for conviction of the accused.

5. The facts of this case display certain unusual features. PW 10, the Investigating Officer, says that he had produced a post-mortem certificate and wound certificate when he submitted final report before the Court. But the final report was returned by the committal Court stating that it did not contain these certificates. Copies of the so-called post-mortem and wound certificates were also not in the C.D. file. The matter was in the cold storage for a considerable number of years and after a period of 11 years, the investigating officer filed a report without post-mortem certificate and wound certificate and the trial was conducted without these relevant documents. The learned Sessions Judge was of the view that the post-mortem certificate was not an essential document and even without there being an evidence regarding the cause of death a verdict of guilt under S. 302, I.P.C. would be sustainable. The learned Public Prosecutor supports this view.

6. Deceased-Lonappan sustaine