Culpable homicide under S.304 not established; conviction under S.326 IPC for grievous hurt with no motive or prior animosity.

1. The appellant is the accused in Sessions Case No.5/2003 on the file of the Special Judge for trial of offences under Act 33 of 1989 at Thalassery.

2. The above case is charge-sheeted against the accused by the Kelakam Police, alleging offences punishable under S.302 I.P.C. and S.3 (2) (V) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act.

3. The prosecution case is that on 10.06.2001 at about 6.30.p.m., near Melecolony in Mannamchery, in Kottiyoor amsom near the road to Mannamchery colony from Kandappanam, the accused, with the intention and knowledge, committed the murder of Gopalan, who belong to Paniya community, by inflicting a fatal injury by stabbing on the left side of his neck and thereby committed the offence.

4. To substantiate the case, the prosecution examined PW1 to PW13. Exhibits P1 to P13 are the exhibits on the side of the prosecution. DW1 is one witness examined on the side of the defense. Exhibit D1 is also a document marked on the side of the defense. MO1 to MO11 are the material objects.

5. After going through the evidence and the documents, the Trial Court concluded that the accused is not guilty under S.302 I.P.C. The accused was also acquitted under S.3(2)(v) of the SC/ST (PA) Act. But the Trial Court found that the accused committed the offence under S.304 part II I.P.C. He was sentenced to undergo rigorous imprisonment for five years and to pay a compensation of Rs.2 lakhs to PW2. There is a further direction to undergo simple imprisonment for 2 1/2 years in default of payment of compensation. Aggrieved by the conviction and sentence, this criminal appeal is filed.

6. Heard Advocate Kaleswaram Raj for the appellant and the learned Public Prosecutor.

7. The counsel for the appellant submitted that, even if the entire allegations are accepted, the offence under S.304 part II I.P.C. is not attracted in this case. The learned counsel for the appellant submitted that the only evidence available in this case is PW2 to PW4. The learned counsel for the appellant submitted that their evidence could not be accepted to convict the accused in the facts and circumstances of the case. The learned counsel for the appellant submitted that there are major contradictions and omissions in the evidence adduced by PW2 to PW4. The learned counsel for the appellants submitted that, the place where the injury was sustained to the deceased is also confusing from the evidence of PW2 to PW4. The learned counsel for the appellant submitted that the admitted prosecution case is that the accused and the deceased were close friends. The accused reached the house and asked for betel leaves from the deceased. He said that it is not with him, then the accused asked the mother of the deceased. She gave it. After that, the deceased went out to purchase household articles. At that time, the accused chased the deceased and assaulted him with a dangerous weapon. No motive is alleged in this case. According to the counsel, the prosecution miserably failed to prove why the accused committed this offence. The counsel submitted that simply because a person sustained an injury, the accused cannot be convicted in criminal cases unless there is evidence to show that the accused with intention inflicted the injury. The learned counsel for the appellant also submitted that the trial Court found that, this is a 'senseless crime'. Therefore, the learned counsel for the appellant submitted that, this is a case in which the appellant is entitled to the benefit of doubt. The evidence of PW2 to PW4 is not reliable, and their evidence is mutually contradictory. These are the contentions of the counsel for the acc