The court established the importance of intent and premeditation in distinguishing between murder and culpable homicide under IPC.

J U D G M E N T

Shaffique, J.

This appeal has been preferred by the appellant challenging the judgment of conviction and order of sentence passed by the 5th Additional Sessions Judge, Ernakulam in S.C. No. 90 of 2014 dated 20/09/2014 by which the appellant was found guilty for offence under Section 302 of the Indian Penal Code, 1860 (for short ' IPC ') and was sentenced to undergo imprisonment for life and to pay a fine of `10,000/- (Rupees Ten Thousand only) with a default stipulation of simple imprisonment for one year.

2. The case of the prosecution is that the appellant and the deceased were brothers and were residing together in the house of the deceased situated at Santhom Colony, near Chirakkapadam thodu, Mundanveli kara, Thoppumpady, Rameswaram Village. On 16/07/2013 at about 11.45 P.M., due to previous enmity, the appellant herein inflicted stab injury with the neck of a broken beer bottle twice on the belly and twice on the back of the neck of the deceased George Xavier who was none other than the brother of the appellant and the injured succumbed to the injuries on 21/07/2013 at hospital and thereby caused his death.

3. Prosecution examined PW1 to PW13 as witnesses, marked documents Exts.P1 to P18 and identified material objects MO1 to MO5. During 313 examination, the appellant denied all evidence tendered against him and pleaded innocence. He filed a detailed written statement under S.313(5) of the Code of Criminal Procedure, 1973 (for brevity 'Cr.P.C.'). No evidence is adduced from the side of the defence.

4. Learned counsel appearing for and on behalf of the appellant Sri.S.K.Saju argued that there is no evidence against the appellant in the case. Prosecution case itself is a fabricated one. There is no eye witness to the incident. The alleged dying declaration is not at all believable as it is made by PW1 who is the daughter of the deceased who is a highly interested witness. The appellant is the one who brought the deceased to the hospital. Absolutely there is no legal evidence against the appellant and the Court below erred in arriving at its conclusion.

He pleaded for an acquittal.

5. On the other hand, the learned Senior Public Prosecutor, Sri.S.U.Nazar argued that the Court below is fully justified in arriving at its conclusion. The dying declaration is made by the deceased to his own daughter and it inspires full confidence. That alone is sufficient to convict the appellant. Moreover, there are medical and other evidence to corroborate the substantive evidence of dying declaration. There is pre- meditation. The injuries were fatal and it shows his intention. There is no space for interference in the matter as the finding of the Court below is just. He submitted to dismiss the appeal.

6. On hearing both sides and perusing records, we are to decide whether the Court below is justified in arriving at its verdict based on the evidence on record. Medical evidence consist of the depositions of PW8, PW7 and PW10. PW8 is the Doctor who treated the victim at Karuvelippady Government Hospital at about 04.50 A.M., on 17/07/2013. She noted the injuries on the victim and issued Ext.P5 wound certificate. She deposed that the victim was brought to hospital by his friends and the appellant herein. It is her version that the victim was conscious and there was smell of alcohol. He told her that there was a fight with his bother and his brother hit him with a bottle. She further deposed that the injuries noted in Ext.P5 could be caused by using MO1 bottle neck. PW7 Dr. Sandeep Varghese treated the victim at Medical College Hospital, Kottayam. Ext.P4 is the treatment certificate issued by him. He deposed that the victim was admitted in hospital on 17/07/2013 and he died on 21/07/2013. According to him, the injuries were fatal. PW10 is the Doctor who conducted the autopsy of the victim. He issued Ext.P7 post-mortem certificate. He deposed that the following ante-

mortem injuries were noted by him during the said examination:

“1. Sta