KANJU MUHAMMED AND KHUMANI Vs. STATE OF KERALA

JUDGEMENT

(1.) The two appellants herein who were accused Nos. 1 and 2 before the IIIrd Additional Sessions Judge, Ernakulam, are in appeal before us in this appeal filed under 379 of the Code of Criminal Procedure. The appeal is filed against the judgment of the High Court of Kerala at Ernakulam made in Criminal Appeal No. 41 of 1995. In the said judgment, the High Court reversed the judgment of the learned Sessions Judge and convicted the appellants herein of offences punishable under Sections 302, 323 and 324 read with 34 IPC and awarded a sentence of imprisonment for life as also on the charge for an offence under302. A sentence of RI for one year for offences punishable under Sections 323 and 324 read with 34 IPC was awarded in addition the sentence already imposed under302 IPC. The co-accused namely Ummer son of Kochunnin who sod convicted under Sections 323 and 324 read with 34 and sentenced undergo RI for one year by the impugned judgment of the High Court has preferred the connected SLP which will be taken up for consideration separately.

(2.) The case of the prosecution as presented the trial court is that in an altercation that ok place between Kunjumuthammed PW-3, Kochunni PW-4, Khadarkunju PW-5 on one side and Moosakutty A-2, Ummer A-3, Ali A-4, Kochunni A-5, Ashraf A-6 and Subair A-7 on the other, on 3.11.1991 at about 8.15 a.m. on the North-Eastern portion of Korathukudy House No. III/209 of Vengola Panchayat, the abovesaid accused persons assaulted Kochunni PW-4 and Kunjumuthammed PW-3. At that time the deceased Majeed came the place of the incident and resisted the said accused from assaulting PWs. 3 and 4 at which time Ummer A-3 beat Majeed with an iron rod MO-1 which blow was warded off by Majeed who caught hold of the iron rod and a scuffle ensued between Majeed and Ummer A-3. At this point of time, Kunjumuthammed A-1 came the scene with a fishing sword MO-2 and stabbed on the back of Majeed with the same. Majeed having received and said stab injury then allegedly turned wards A-1 and caught hold of the sword which was pulled back by A-1 who again stabbed Majeed on the left side of his chest. Seeing the assault on Majeed it is stated Muhammed PW-2 rushed the scene but he was intercepted and stabbed by A-1 on the right side of the lower part of his belly. PW-2 then caught hold of the sword but he was assaulted by Ummer A-3 on the head with the iron rod. At that point of time the prosecution alleges accused 2 and 4 7 dragged Majeed the residential compound of the 3rd accused and put Majeed in a supine position and A-4 exhorted others by shouting "cut this pigs throat". The prosecution then alleges that the second accused got MO-2 a sword from the first accused and inflicted a forceful cut on the front of the neck of Majeed due which injury Majeed died on the spot. It is the further case of the prosecution that on the same day at about 8.45 a.m., Sacaria PW-1 went the Perumbavoor Police Station which is about 2 3 kms. from the place of incident and lodged a complaint as per Ex. F-1. The Assistant Sub-Inspecr of Police, PW-18 attached the said Police Station recorded Ex P-1 and registered Crime No. 408/91, he then sent the file the Circle Inspecr of Police, PW-19, who initiated the investigation of the case and proceeded the scene of incident at about 9 a.m. and prepared inquest Panchnama as per Ex. P-6 which was attested by PW-10 Azeez. The I.O. (PW-19) also seized MO-4, a lungi found on the body of Majeed, a thorthu (MO-3) found near the body of Majeed and also MO-5 slippers. Thereafter he sent the body Kottayam Medical College hospital for postmortem examination. He then conducted the Mahazar of the scene of the incident. On search of the house of the 3rd accused he found and seized Mos. 1 and 2 as per Ex. P-8 which was attested by Mohammad PW-12.

(3.) The postmortem of the body of the deceased was conducted at about 1.30 p.m. on 3.11.1991 by PW-13 the docr who was then the Asstt. Professor of Forensic Medicine, Kottayam Medical College and who issued Ex. P-12, the postmortem certificate noting that the injuries suffered by the deceased were anti-mortem. On 3.11.1991 the docr, PW-14 at the Medical Trust Hospital, Ernakulam examined Muhammad PW-2 and issued Ex. P-13 on 4.11.1991. PW-17, the docr at the Taluk Headquarters Hospital, Perumbavoor examined Kochunni, PWs. 3 and 4 and issued Exs. P-16 and P-20, the medical certificates. This witness also identified the handwriting of CW-28, Dr. T.K. Ibrahim who had issued the certificate Ex. P-22 and who was not available be examined.