The Judgment of the Court was delivered by
P. Ubaid, J.:— The appellants herein challenge the conviction and sentence against them under Section 323 IPC in S.C No. 263 of 2009 of the Court of Session, Kollam. Pending this appeal, the 2nd appellant died. Her death was recorded in the proceedings on production of a copy of the death certificate. Charge against the 2 accused thus abated pending the appeal.
2. The three accused faced prosecution before the trial court under Sections 323 and 304 r/w Section 34 of the IPC on the allegation of assault made by them on one Devarajan. The deceased 2 appellant is the direct sister of the said Devarajan. The 1st appellant is the husband of deceased 2 appellant, and the 3rd appellant is the son.
3. The alleged incident happened on 26.01.2007 at about 3.00 pm at the Tharavadu property of the accused and the deceased. There was pending civil disputes between them at that time, concerning the properties including the Tharavadu property, wherein the alleged incident occurred.
4. The prosecution case is that, when deceased Devarajan attempted to pluck a tender coconut from one of the coconut tress, the deceased 2 appellant pulled him down. As a result of this, he fell down and collapsed. Then all the three accused dragged him to a distance.
5. The crime in this case was registered on the basis of the statement given by the brother-in-law of the deceased. After investigation, the Police submitted final report under Sections 323, 294(b) and 304 IPC r/w Section 34 of the IPC in the Court of learned Judicial First Class Magistrate, Karunagappally. After complying with the procedural formalities, the learned Magistrate committed the case to the Court of Session, from where it was made over to the learned 1 Additional Sessions Court, Kollam. All the three accused, pleaded not guilty to the charge framed against them under Sections 323 and 304 of the IPC.
6. The prosecution examined 13 witnesses and proved Exts. P1 to P9 documents. The defence did not adduce any oral evidence. However, Exts. D1 and D2 contradictions in the statements of the material witnesses were proved. On an appreciation of the evidence, the trial court found that Devarajan died not because of any assault made by the accused, and the cause of death was only ‘Occlusive Coronary Artery Disease’. Thus the trial court found the accused not guilty under Section 304 IPC.
7. However, accepting the evidence given by the material witnesses regarding some simple assault made by the accused on the body of Devarajan, the trial court found thus guilty under Section 323 IPC, with the aid of Section 34 IPC. Accordingly, they were convicted under Section 323 IPC. The accused were sentenced to undergo simple imprisonment for two months each and to pay a fine of Rs. 1000/- (Rupees One Thousand only) each. Aggrieved by the judgment of conviction dated 30.07.2012, the appellants have come up in appeal.
8. When this appeal came up for hearing, the learned counsel submitted that practically there is evidence only against the deceased 2 appellant in this case, but the charge against her stands abated. Ofcourse as regards the exact cause of death, the prosecution has no dispute now, that Devarajan died due to Occlusive coronary artery disease, and not because of any assault made by any of the accused. Now the question is whether the conviction under Section 323 of the IPC can be sustained. Ofcourse as regards the assault made by the deceased 2 appellant, all the material witnesses are definite and consistent.
9. PW 2 to PW 4 and PW 6 are the material witnesses examined by the prosecution. of them, PW 2 is the sister of the deceased and PW 3 is her daughter. PW 4 did not fully support the prosecution. She was declared hostile and cross examined by the learned Public Prosecutor. The evidence of PW 6 is only regarding the 1 part of the alleged incident, wherein deceased Devarajan fell down from the coconut tree, when pulled down by the deceased 2 appellant. PW 6 has no case that the other accused had in any manner assaulted the deceased. He categorically stated that he had not seen the accused Nos. 1 and 3 assaulting the deceased. In spite of this definite assertion in evidence, the prosecution did not care to declare him hostile or to cross examine him. Thus practically, the supporting evidence of PW 6 is only against deceased, 2 accused.
10. PW 3 stated that accused Nos. 1 and 3 had dragged the deceased to a short distance from where he fell down. In cross examination, she stated that such a statement is not seen given by her to the Police. This aspect is proved by the defence through the Investigating Officer. Now, what remains is only the evidence of PW 2. Her evidence is also not certain and definite as regards the assault allegedly made by the accused Nos. 1 and 3. If her evidence is true, there must definitely be some external injury on the body of the deceased. Ext. P5, Post Mortum certificate shows that the deceased had no sort of external injury on the body.
11. Thus, I find that there is no satisfactory evidence to implicate the accused Nos. 1 and 3 or to prove that they had in any manner assaulted the deceased. I have already found what is proved practically is the assault made by deceased 2 accused.
12. On this aspect, all the material witnesses are consistent that when deceased Devarajan proceeded to pluck a tender coconut from a coconut tree from the property in dispute, the deceased 2 appellant pulled him down, as a result of which, he fell down and collapsed. On this particular aspect, all the witnesses are consistent. Thus a clear case under Section 323 IPC stands well proved as against deceased 2 appellant. But the charge against her stands abated.
13. Though the witnesses stated during trial that Devarajan died due to the assault made by the accused, the court below found otherwise that the accused are not in any manner responsible for the death, and Devarajan died due to Heart Attack.
14. In the absence of any evidence to show that the accused Nos. 1 and 3 had in any manner assaulted the deceased, they cannot be found guilty under Section 323 IPC. Even as regards the assault made by deceased 2 appellant, the accused Nos. 1 and 3 cannot be found guilty because there is no material to show that the 2 accused committed the assault as part of their common intention, or as part of a design made by the three accused. Evidence shows that just when the deceased proceeded to pluck a tender coconut, the 2 accused rushed towards him and pulled him down. There is nothing to show that it was part of a design made by them earlier, or that the 2 accused did so as part of any common intention. In the absence of such materials, the accused Nos. 1 and 3 cannot be made liable for the assault made by the 2 accused. Thus, I find that there is absolutely no sort of evidence against accused Nos. 1 and 3.
15. In the result, this appeal is allowed. The appellants 1 and 3 who are the accused Nos. 1 and 3 in the court below are found not guilty of the offence under Section 323 IPC, and accordingly they are acquitted under Section 386(b)(1) Cr.P.C The conviction and sentence against them under Section 323 IPC in S.C No. 263 of 2009 of the court below will stand set aside.