APPU ALIAS APOLIMAISTRY Vs. STATE

JUDGEMENT

(1.) THE short point that arises for determination in this criminal appeal centres around the interesting question as to whether, in the course of a sporadic assault that takes place between two persons obviously under the influence of alcohol and one that is preceded by a vocal altercation involving very offensive abuse, can be categorised as an offence of murder merely because the deceased has died on the spot. The issue arises out of an incident that took place at Kowdoor Village, Karkala on 21-7-1994 at about 8. 00 p. m. The accused Appu alias Apoli Maistry and the deceased Appu Harijana had both come out of an arrack shop, the accused was riding a bicycle slowly and the deceased was walking behind him and the evidence indicates that they were abusing each other in very foul language. The accused is alleged to have knocked Appu down with his bicycle after which he lifted the bicycle and threw it on Appu. Thereafter, it is alleged that he lifted a stone M. O. 3 and assaulted Appu twice on the head by means of that stone. M. O. 3 is a relatively large stone measuring 9 1/2' x 7 1/2 x 5" and weighing about 20 K. Gs. and because of the impact from the stone, Appu sustained a fracture of the skull which resulted in his death. A complaint was lodged with the police on the next morning at 9. 45 a. m. by P. W. 1 and the police thereafter came to the village and commenced their investigation. The incident had been witnessed by P. W. 1 and some others who clearly indicated the name of the accused as the assailant. The accused was arrested and on completion of the investigation, he was charge-sheeted for an offence punishable under Section 302, Indian Penal Code. The learned Trial judge at the conclusion of the trial held the accused guilty of the offence of murder and convicted him and sentenced him to suffer R. I. for life. The present appeal is directed against that conviction and sentence.

(2.) AT the hearing of the 'appeal Smt. Anasuya on behalf of the appellant and Sri Koti, learned Additional State Public Prosecutor have taken us through the entire record and advanced their submissions. The principle challenge to the conviction is on the ground that the only available evidence is that of P. W. 1 who states that he had gone to the grocery shop on that night when he saw the accused and the deceased emerging out of the arrack shop in a drunken condition abusing each other in very foul language. He states that the accused knocked the deceased down with his bicycle, that he threw the bicycle on him and that he also picked up M. O. 3 and assaulted him twice on the head with the stone. Appu, who had fallen on the ground and was bleeding profusely, died as a result of the assault and the accused took the bicycle and went away from that place. This witness has been cross-examined to a considerable extent and what emerges is that his evidence remains unshaken. The defence has not been able to suggest any reason why P. W. 1 should falsely implicate the accused nor has it been able to suggest any hostility between the parties. We find that the evidence is reliable and furthermore that P. W. 1 being a relation of the deceased not only knew him but also knew the identity of the accused as they both hail from the same village. There is no dispute about the fact that he witnessed the incident at close quarters and that there was sufficient light for him to see the incident and identify the persons.

(3.) SMT. Anasuya has submitted that there is no corroboration to this evidence and furthermore that it would be highly dangerous to rely on a single witness in a serious case of this type. Her submission is that if, as appears, the deceased was drunk and was using bad language that he must have invited an assault from any of the passers-by and her further submission is that having regard to his age and condition, had he sustained a fall as a result of any such beating that such injuries are most likely considering the fact that a large stone was lying at. that place.