KUTTIHANIYIL SANKARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellants, eight in number, were put on trial before the Sessions Judge of Tellicherry for the offences of rioting armed with deadly weapons, murder and voluntarily causing grievous hurt with dangerous weapons. The Judge acquitted them all holding that no reliable or dependable version of the occurrence had been presented to the Court. In appeal by the State, the High Court held them all guilty of the offences of rioting with deadly weapons and also convicted them under the second part of Section 304 I.P.C. read with Section 149 for causing the death of one Krishnan Nair. They were also convicted under Section 326 read with Section 149 I. P. C. for causing grievous hurt to Gopalan who figured as P.W. 2 at the trial. There was also other sentences under different sections of the Penal Code on the accused separately. The appellants have come to this court by special leave.

(2.) As the two courts have taken different views of the evidence adduced, it is necessary to note the facts about which there can be no dispute and to consider the evidence for the prosecution to find out whether the accused or any of them can be held guilty of the offences with which they were charged. The trouble arose over a plot of garden land known as Brumakulam in village Kodom having an area of about 2 1/2 acres, which originally belonged to Nair terwad of that village. As a result of a partition which took place in 1957, one Balkrtshnan Nair became the sole owner of the plot and he gave a lease of it to the fourth appellant accused in 1960. Thereafter he executed a deed of sale in respect of the property in favour of the said accused while he was still in possession under the lease. Balakrishnan Nair was an absentee land owner and the deceased, another member of the terwad had been in the enjoyment of the income from this property for some time. He did not like the idea of the fourth appellant purchasing it. At this instance, some Harijans erected huts on the property and squatted therein. About the 24th October, 1965, these were demolished by the first and the fourth accused. Krishnan Nair thereupon asked P. W. 8 to erect one more hut which was done on October 29, 1965. The fourth accused referred to the fifth accused, the Secretary of the Left Communist Party in that area who seemed to be man of some influence, about the trouble created by Krishnan Nair and his men. On the morning of November 2, 1965, accused No. 5 went to Erumakulam property taking with him the first accused, the local secretary of the party and the sixth accused, a member of the area committee of his party. Whatever be the object of the gathering, there can be no doubt that all the eight accused-appellants were at Erumakulam property when the incident took place. Krishnan Nair had paid a visit to the property at about 9.30 or 10 a.m. along with prosecution witnesses 1 and 2 apparently for the purpose of seeing whether the hut erected on 29th October was still there. They paid a second visit to the property at about 11 a. m. when the trouble took place. That a fight of a fairly serious nature took place on this occasion admits of no doubt. Krishnan Nair lost his life as a result of the beating given to him with sticks. The postmortem showed no less then 15 injuries on various parts of his body, including his head and forehead, two being grievous and dangerous. The cause of his death was given by the doctor as heart failure due to shock caused by multiple injuries, specially Nos. 5 and 7. The other injuries were simple in nature. P. W. 1 was not injured at all and it was his version that he kept himself at some distance from the trouble spot. P. W. 2 suffered no less than 16 injuries but all except one were simple. Two of the injuries could have been caused by a sharp object or a sharp-pointed object. Injury No. 8 could have been caused by a rub with a rough object or surface; all others could have been caused by a forcible contact with a blunt object. On the side of the accused no less than six persons suffered injuries. The first accused had one cut wound on his left ear which practically severed it from the head. The doctor described the wound as a grievous one caused by a sharp object. The second accused had sustained a contusion with an abrasion on the back of the left shoulder which could be caused by beating with a stick. The fourth accused had sustained two contusions: the fifth accused bad nine injuries of which six could be caused by beating and two of them showed rubbing with a rough surface; three other injuries could be caused by a sharp-pointed object like a knife. The sixth accused had five injuries of which two could be caused by beating with a stick and three by rubbing against a rough surface. The eight accused had two injuries which could be caused by a blunt object. Immediately after the occurrence the injured accused had gone to a hospital and received attention from a doctor. It is not quite clear whether on his second visit to the property Krishnan Nair had armed himself with a stick but Gopalan P. W. 2 had a pen knife with him which evidently was responsible for the loss of the ear of the first accused and some injuries inflicted on some of the other accused.

(3.) The injuries tell their own tale. The irresistible inference therefrom is that although Krishnan Nair had only two followers with him one of whom kept himself at a safe distance from the area of the affray there was a fight and sticks were used by both sides. There was no evidence that anybody had carried a stick to Erumakulam but these were not wanting on the spot as the poles with which the huts had been constructed were lying in scattered about the plot and could be effectively used as weapons. Gopalan could have used his knife so as to cause a severance of one of the ears of the first accused only if he could get sufficiently close to him. If the first accused had a stick in his hand which he meant to used against Nair and Gopalan right from the beginning, it is difficult to imagine how Gopalan could have get so near him as to be able to cut off his ear with a knife which had only a 4" long blade. Again it is clear that Krishnan Nair by himself could not have inflicted injuries with a stick on five of the accused. Sticks must therefore have been plied not only by the accuseds but also by Krishnan Nair and Gopatan fairly free. Some if not all the accused must have taken part in beating up Krishnan Nair and Gopalan.