KAMBIVELI UNNI Vs. STATE OF KERALA

JUDGEMENT

(1.) ACCUSED No. 3 in SC. No. 43/1996 on the file of the Sessions Court, Thalassery is the appellant. He is faced with the conviction for the offence punishable under Section 304 Part II IPC and has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 15,000/ -. This conviction is assailed in this appeal. He was charged for the offence punishable under Sections 447, 341, 325, 302 read with Section 34 IPC along with his brother's wife, accused Nos. 1 and 2. Accused No. 1, the brother's wife was acquitted and his brother accused No. 2 was found guilty of the offence punishable under section 323 IPC. As the vital injury has been inflicted by the appellant the court below found that he was guilty of the offence punishable under Section 304 Part II, as he did not have an intention to cause death but had the knowledge that the injury inflicted was likely to cause death.

(2.) IT is contended by the appellant that there is absolutely No evidence in this case to fasten any guilt on the appellant. PW2, with whom the quarrel started had not supported the prosecution case. Equally so is PW3, the husband of PW2. They are the parents of accused No. 1. Only PWs. 1 and 4 had spoken in tune with the prosecution case. It was not conclusively proved that PW4, the grand son of the deceased was even present on the scene of occurrence. The only available evidence therefore is from PW 1, the wife of the deceased, who was only an interested witness. Without any corroboration, the court cannot act upon the evidence of PW1 alone. In the absence of tangible evidence, the conviction has to be set aside.

(3.) IT is further submitted that, even if the incident is stated to be proved, the deceased died due to peritonitis, because of the alleged kick on the naval portion of the deceased. There was no external injury. It can at the best bring only the offence punishable under Section 323 IPC, for causing simple hurt. In support of this contention, the decision in Daveed Manas v. State (1972 KLT 640) is relied on. There, in spite the death arising out of peritonitis by reason of pelting of stones, the accused was convicted only for the offence punishable under Section 323 IPC.