RAMAKRISHNA PILLAI Vs. STATE

JUDGEMENT

(1.) The accused in Sessions case No. 9 of 1125, on the file of the Anjikaimal Sessions Court, is the appellant. He and another person by name Thomas, were both charged under Ss. 28 and 281 of the Cochin Penal Code in connection with the death of one Peter. The charge against them was that they, jointly and in furtherance of a common intention, voluntarily caused hurt to Peter by kicking him and striking him with the fist on the most vital part of his body, with the knowledge that it would cause death and that as a matter of fact the victim died a day after assault. The assault took place at 11 P.M. on 2.1.1125 and the victim died at 7 P.M. on 3.1.1125. In his judgment the learned Sessions Judge finds that the first accused was one of the persons who caused injuries to Peter, but that the evidence against the second accused could not be accepted as true. The result was that the learned Judge was not satisfied that the two accused had a common intention and that they had participated in the assault on the victim in furtherance of that common intention. The learned Judge stresses the fact that it is only the first accused who had a grievance against the victim, because the latter was using bad language about the first accused and that there is nothing to show that the second accused had any provocation or motive. There is also the additional fact that the name of the second accused was not mentioned in the dying declaration of the victim, nor is his name mentioned by PW 11, whose evidence has been accepted as true by the Trial Court. It must here be stated that no sharp weapons were used in making this assault but still as a result of the assault the victim died. The medical evidence shows that the victim was addicted to drink. Both the first accused and the victim were drunk at the time the assault took place. The intestines of the deceased were found to have been ruptured and he died as the result of peritonitis which set in as a consequence. The doctor also noticed the unhealthy condition of his pancreas. These may be caused by voluntarily kicking in the region of the abdomen.

(2.) Since common intention, which has been stressed in the charge, has not been found by the Trial Court to have been proved or established, the first accused can be responsible only for the consequence of the attack which he made on the deceased. The dying declaration, Ext. D, refers to two assaults made by the first accused. The victim says that the first accused beat him and kicked him. He also says that as a result of the assault, he fell down. After falling down he says he did not know what happened. Some of the other witnesses, who were examined on behalf of the prosecution, saw two persons assaulting the deceased. Identity of the second person has not been established with any reasonable certainty, and that was why the learned Sessions Judge felt that he could not convict the second accused. It is also significant that one of the prosecution witnesses said that the first accused, soon after the beating, had used words to indicate that he gave two blows to Peter, who succumbed subsequently. The evidence of the Doctor indicates that a normally healthy person would not have succumbed if he was assaulted by being beaten and kicked. The idea indicated in the medical evidence is that by alcoholism the intestines may lose much of their strength and may easily got ruptured. The evidence in support of the conviction is that of PW 11, who says that it was a dark night and when he heard the sound of fighting he struck a match and with the light of the match he was able to see the accused and somebody else beating and assaulting the deceased. The dying declaration refers only to two acts done by the first accused appellant, namely giving one slap and one kick. In these circumstances, we are constrained to hold that the case brought against the first accused has not been made out. Even the Trial Court has refused to convict the first accused of murder under S.281. He has been convicted only under S.283 of culpable homicide not amounting to murder. The evidence adduced on behalf of the prosecution, which can be acted upon, has only established, so far as the first accused individually is concerned, a case under S.303 of the Cochin Penal Code, of voluntarily causing hurt.

(3.) We must here refer to one argument that was addressed on behalf of the first accused appellant by his learned counsel. When the Sub Inspector of Police, who, according to his evidence, did not conduct the investigation, was examined as a witness in the Trial Court, he did refer to his contacting some of the prosecution witnesses while the Division Inspector of Police was conducting the investigation. After his examination was over, at the instance of the Advocate appearing for the accused, he was called back into the witness-box and was asked with special reference to S. 143 of the Cochin Code of Criminal Procedure whether he had reduced into writing any statements made by the persons who were subsequently examined as prosecution witnesses. His answer was that he did not conduct the investigation, which was done, according to him, by the Division Inspector of Police, that he might have made notes when he had contacted these witnesses, but he had not recorded any statements of the kind referred to in S.143. He was then asked to produce those notes and was also asked whether they were destroyed or whether they were in the Police Station. Without sufficient warning before hand, the witness was certainly taken by surprise when these questions were put to him all on a sudden after he had completed his evidence. It is urged on behalf of the appellant that it was incumbent upon the Police Sub Inspector to produce the notes or memoranda or summary which he might have made when he contacted the prosecution witnesses and that the non production of the notes has vitiated the trial. Reliance is placed on the decision of the Nagpur High Court reported in Viswanath v. Emperor ( AIR 1936 Nag. 249 ). We are not satisfied that this contention is well founded. S.143 refers to statements made by a person to a Police Officer in the course of an investigation and refers only to such statements if reduced into writing. The answer given by the Sub Inspector that he has not reduced the statements into writing and that the investigation was not conducted by him, but by the Division Inspector, excludes the applicability of S.143 to the facts of the present case.