P.B.Suresh Kumar, J.
1. The appellant is the sole accused in S.C.No.1535 of 2015 on the files of the Court of the Additional Sessions Judge-IV, Kollam. He stands convicted and sentenced for the offence punishable under Section 302 of the Indian Penal Code (IPC).
2. The victim in the case is one Moncy. He was a bus driver by profession. The accusation in the case is that on 07.05.2012, at about 7.30 p.m., the victim and his friend Sunil Kumar shared a bottle of liquor at a Bar at Punalur with a native of Tamil Nadu, where the appellant was also present. After having the drink, the victim and the said Sunil Kumar were proceeding to their respective houses and when they reached near the nearby Cinema Theatre, the appellant approached the victim and required him to pay money for him to purchase a bottle of liquor. The victim refused to give money to the appellant. The appellant then gave a blow with the back side of his forearm on to the right side of the neck of the victim. The victim fell down on his back with his head hitting on the tarred portion of the road. The appellant who could not satisfy his fury, then stamped on the chest and stomach of the victim repeatedly and he succumbed to the injuries forthwith.
3. On the appellant being committed to trial, the Court of Session framed charge against him under Section 302 IPC. The appellant pleaded not guilty to the charge. Thereupon, the prosecution let in evidence. When the incriminating evidence was put to the appellant, he denied the same and maintained that he is innocent. Thereupon, on a consideration of the evidence on record, the Court of Session found the appellant guilty of the charge, convicted and sentenced him to imprisonment for life. The appellant is aggrieved by his conviction and sentence, hence this appeal.
4. The point that falls for consideration is whether the conviction of the appellant and the sentence imposed on him are sustainable in law.
5. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
6. The learned counsel for the appellant did not challenge the finding rendered by the Court of Session that it is a case of homicide. Instead, the attempt of the learned counsel for the appellant at the time of arguments was only to establish that the prosecution failed to prove the occurrence beyond reasonable doubt. In order to bring home that point, it was argued by the learned counsel for the appellant that the conviction of the appellant is solely based on the oral evidence tendered by PW3 and PW4, the eye witnesses in case and that the same is not reliable and trustworthy. As far as the oral evidence tendered by PW3 is concerned, the argument advanced by the learned counsel for the appellant is that there are no materials on record to indicate that PW3 was in the company of the victim at the time of occurrence. As far as the oral evidence tendered by PW4 is concerned, according to the learned counsel, he was only a chance witness and there cannot be any conviction solely based on the evidence of a chance witness. It was conceded by the learned counsel for the appellant that the prosecution relies on the evidence tendered by PW10, the doctor who conducted the postmortem examination, to corroborate the evidence tendered by the ocular witnesses. It was, however contended by the learned counsel that the medical evidence is not consistent with the evidence of the ocular witnesses. The learned Public Prosecutor supported the impugned judgment pointing out that there are absolutely no reasons to doubt the veracity of the evidence tendered by PWs 3 and 4 and that therefore the Court of Session cannot be found fault with for having convicted the appellant, placing reliance on the evidence of the said witnesses.
7. In the light of the arguments advanced by the learned counsel for the appellant, it is necessary to refer to the relevant evidence in the case. PW1 is the brother of the victim who lodged the First Information Statement. PW1 had not seen the occurrence. PW3 is Sunil Kumar. He is a bus driver. PW3 belongs to the place called Nellipalli in Punalur. He deposed that the victim was his friend; that at about 7.30 p.m. on 07.05.2012, when he went to the Bar, the victim was there and since there was no one at the Bar who were known to them, they along with a native of Tamil Nadu, who was present there purchased a bottle of liquor and consumed the same. It was deposed by PW3 that the appellant was also there in the Bar at that time. According to PW3, when the native of Tamil Nadu left their company after consuming liquor, PW3 along with the victim proceeded to their respective houses and when they reached close to the nearby Cinema Theatre, namely “Thai Lakshmi”, the appellant who was then standing there required the victim to give him money to purchase liquor. It was deposed by PW3 that the victim then retorted by asking the appellant whether he had entrusted any money to him and the appellant then hit the victim on the right side of his neck with his right forearm and the victim fell down on his back with his head hitting on the tarred portion of the road. It was deposed by PW3 that even though he attempted to intervene, the appellant pushed him away and repeatedly stamped the victim on his chest and stomach. It was deposed by PW3 that the victim became unconscious forthwith and he was taken to the Taluk Hospital, Punalur, by PW3 in a police jeep that passed through the road then. It was also deposed by PW3 that after examining the victim, the doctor informed him that the victim died. The suggestion made to PW3 by the counsel for the appellant during cross-examination was that it was PW3 who picked up a quarrel with the victim on the road and the appellant came there only to separate them and that the victim sustained injuries on account of some other reason. The relevant portion of the deposition of PW3 reads thus:
"ന ങള മ സ യ തമ ദ പ ച ട വഴക ടകയ അത പ ട ച റ പത വനത ണ എന പറയന(Q) ശര യല (A) . മ സ ക വ ഹന തട മയ റ ഏമത ര+ത യ പര ക പറ യത ണ എന പറയന(Q)ശര യല (A).”
As noted, PW3 denied the suggestions made to him.
8. PW4 is one Dileep. He is a person residing near the residence of the victim. PW4 is also a person who had previous acquaintance with the appellant. PW4 deposed that he had been to the same Bar to have a beer with his friend Deepu; that while he was waiting at T.B. Junction after consuming beer with the said Deepu, he saw the appellant hitting with the back of his forearm on the right side of the neck of the victim. It was deposed by PW4 that the victim fell down hitting his head on the tarred road and thereupon the appellant stamped the victim forcefully on his chest and stomach after pushing PW3 away, who attempted to intervene. It was also deposed by PW4 that the victim was taken thereupon in a police jeep to the hospital.
9. PW10 is the doctor who conducted the postmortem examination on the body of the deceased and issued Ext.P9 postmortem certificate. The ante-mortem injuries found on the body of the victim at the time of postmortem examination, as deposed by PW10 read thus:
“1.Contusion 1.5x1x0.4 cm on the right side of back of head just outer to occiput.
2. Contusion 2x2x0.5 cm, on the back of head just below the occiput in the midline. Fracture fragmentation of occipital bone over an area of 6x6cm beneath injury Nos. (1) and (2).
3. Contusion 1.3x1x0.5cm, on the left side of forehead 3.5 cm outer to midline and 5.5cm above eyebrow. Underneath frontal bone showed depressed fracture fragmentation over an area of 2.3x1.3x0.7cm.
4. Contusion of front third of left temporalis muscle. Anterior cranial fossa on the left side showed fracture and was found extending to cribriform plate and adjoining orbital plate. Brain showed thin film of subarachnoid bleeding. Fluid blood present in ventricles. Sulci narrowed and gyri flattened.
5. Contusion 17.5x9x3cm on the right side of neck, the lower end just outer to midline and just above collar bone.
6. Contusion 2.5x2x0.5cm, oblique on the right side of neck lower inner end overlying the collar bone and 4.5 cm outer to midline.
7. Contusion 4.5x21x1.3cm oblique, on the left side of neck, the lower inner end 8.5cm outer to midline and 5cm above collar bone.
8. Fracture fragmentation of last piece of body of sternum and xiphoid process with infiltration 5x3x3cm underneath.
9. Fracture of IV and V ribs on the right side just outer to costochondral junction and I to VI ribs at the angle.
10 Fracture I to VII ribs on the left side at the angles. Laceration of pericardium 2.5x1cm involving whole thickness just above right atrium. Pericardial cavity contained 200ml of fluid blood. Laceration 4x2 cm, entering the cavity of right atrium at the atrio ventricular junction. Laceration of right atrium 6x0.5cm entering the lumen at the site of entry of Inferior venacava. Both atrial lacerations were separated by a band of tissue of 3.5x2x0.3cm. Right chest cavity contained 1100 ml and left chest cavity contained 850 ml of fluid blood.
11. Contusion around the middle third of right coronary artery.
12. Healing wound 0.5x0.5cm, on the lower inner quadrant of left buttock, covered with a reddish brown crust.”
The opinion given by PW10 as to the cause of death was that the victim died of the injuries sustained on his neck, head and chest. It was also opined by PW10 that the injuries sustained to neck, head and chest are independently sufficient to cause death. It was also clarified by PW10 in her evidence that injuries 1 to 3 can be caused by a forcible fall on a hard object like tarred portion of the road, injuries 5 and 6 were injuries sustained to neck of which injury no. 5 can be caused by a forcible slap with forearm. It was also deposed by PW10 that injuries 8 to 11 can be caused by stamping.
10. PW11 was the Additional Sub Inspector of Police attached to Punalur Police Station as on 07.05.2012. PW11 deposed that on that day, while on patrol duty, when they reached near Thai Lakshmi Theatre at about 8 p.m., PW11 noticed a commotion and a crowd and when he alighted from the vehicle, it was found that a person was lying on the road, unconscious. It was deposed by PW11 that it was he who took the person to Taluk Headquarters Hospital, Punalur, with the help of the local people and at the hospital, after examining the victim, the doctor informed PW11 that the victim is no more.
11. It is based on the evidence discussed above that the court below came to the conclusion that the prosecution has succeeded in proving the occurrence as also the guilt of the appellant. As noted, the learned counsel for the appellant did not address any arguments challenging the finding rendered by the Court of Session that it was a case of homicide, and the attempt of the learned counsel was only to establish that the prosecution has failed to prove the occurrence beyond reasonable doubt. The appellant does not dispute the fact that the occurrence took place when the victim and PW3 reached the scene of occurrence on their way back from the Bar. He also does not dispute his presence at the scene at the relevant time. His case is only that the victim and PW3 had picked up quarrel with each other after consuming liquor and that the appellant only attempted to separate them and that the victim suffered injuries on account of some other reasons. The appellant has not substantiated his stand that the victim suffered injuries on account of some other reasons. Be that as it may, inasmuch as the appellant put forward a case that he only intervened in the quarrel between the victim and PW3 to separate them, he cannot be heard to contend that PW3 was not in the company of the victim at the time of occurrence. We have perused the evidence tendered by PW3 meticulously and we find the same to be real and natural. Even though, PW3 was cross-examined thoroughly by the learned counsel for the appellant, no material whatsoever was brought out to doubt the veracity of the evidence tendered by PW3.
12. As noted, the credibility of the evidence tendered by PW4 was challenged by the appellant on the ground that he is only a chance witness. The fact that PW4 is a person who is residing in the locality of the place of occurrence is not in dispute. PW4 deposed that he is a manual labourer who occasionally used to go to the Bar near the place of occurrence to consume liquor. PW4 only deposed that by the time he reached the place of occurrence, he saw the appellant giving a blow with the back of his forearm on to the right side of the neck of the victim. We have perused meticulously the evidence tendered by PW4 as well. We find the evidence tendered by PW4 also to be real and natural. As noticed, PW10, the doctor who conducted the postmortem examination opined that injuries 1 to 3 can be caused by a forcible fall on a hard object like tarred portion of the road; that injuries 5 and 6 are injuries sustained to the right side of the neck of which injury no. 5 can be caused by a forcible slap with forearm and injuries 8 to 11 can be caused by stamping. The opinion aforesaid of the doctor supports, fully, the evidence tendered by PWs 3 and 4.
13. Even though the learned counsel for the appellant has not addressed any argument that the proved facts do not make out a case of murder, inasmuch as the evidence on record indicates that the appellant inflicted injuries which were sufficient in the ordinary course of nature to cause death, we are of the view that the finding rendered by the Court of Session that the proved facts make out a case of murder is also in order.
In the light of the discussion aforesaid, we do not find any merit in the appeal and the same is accordingly, dismissed.
