KRISHNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The judgment dated July 18, 1986 passed by the Division Bench of the Kerala High Court in D.B. Criminal Appeal No. 281 of 1983 preferred by the State of Kerala against the order of acquittal dated February 25, 1985 passed by the Sessions Judge, Manjeri Division, in Sessions Case No. 29 of 1981 is impugned in the instant appeal. It may be stated here that against the said order of acquittal the wife of the deceased preferred Revision Petition before the High Court being Crl. Revision Petition No. 119 of 1983. A show cause notice was also issued by the High Court to the accused, after admitting Criminal Appeal No. 281 of 1983, to show cause against proposed enhancement of their sentence. By the impugned judgment dated July 18,1986, the High Court disposed of all the said matters by a common judgment. The High Court by allowing the Criminal Appeal No. 281 of 1983 and Crl. Revision Petition No.119 of 1983, set aside the order of acquittal passed by the learned Sessions Judge and convicted both the appellants under Section 302 read with Section 34 of the Indian Penal Code and sentenced each of the accused to life imprisonment. No order of enhancement has, however, been passed by the High Court.

(2.) It may also be stated here that accused No.1 Krishnan being the appellant No. 1 in this appeal, has died during the pendency of this appeal. This appeal now relates only to accused No. 2, Vijaykumar.

(3.) The deceased, Madavan, was the younger brother of accused No.1 Krishnan, and accused No.2 Vijay Kumar is the sister's son of both the deceased and the said accused No. 1. The prosecution case in short is that on account of enmity arising out of property dispute, both the accused with a common intention to kill the said Madavan, were waiting for him under a tamarind tree on August 22, 1981 at 9.30 p.m. when Madavan being accompanied by P. W. 1 nephew of the deceased was coming back to his home after lodging a complaint in the Changaramkulam Police Station on account of missing of a pump set of the deceased reached a place called Parappadikkal, both the accused, who were hiding behind a tamarind tree, jumped out in front of the deceased saying that they had been waiting for the deceased. Thereafter, the accused No. 2 Vijaykumar inflicted a stab injury on the forehead of the deceased with a knife. When P. W. 1 caught hold of Vijay Kumar in preventing his further attempt to give stab injury on the deceased and made him to put down his knife on the ground, the first accused proceeded towards the deceased who was trying to escape and gave successive dagger blows and thereafter ran towards the paddy field cutting across the road. When P. W. 1 let loose the grip of the second accused and proceeded to rescue the deceased, the second accused also ran away after throwing away the said knife near the place of incident. Hearing the noise made by P. W. 1 and the accused at the time of the incident. P. W.4 Velayudha Kurup and P.W.3 Ramakrishan also reached the place of occurrence. Although the wounds of the deceased were tied with the shirt of P. W.1, he died at the spot. The F.I.R. was lodged with the Changaramkulam Police Station by P. W. 1 by 11.30 on the same night and the case was registered against both the accused under Section 302 read with Section 34, I.P.C. The Circle Inspector of Police. P. W.12. took up the investigation on the next day and proceeded to the place of occurrence and prepared a report (Ex. P 18). The dead body was sent to the hospital for post mortem. The house of accused No. 1 was searched and M.Os. 5 to 7 were taken into custody and he was arrested. The second accused was arrested on February 26,1981. The material objects which were seized during investigation were sent to the Chemical Examiner and the Chemical Report was obtained (Ex.P.16).