K V CHACKO Vs. STATE OF KERALA

JUDGEMENT

(1.) These appeals arise out of the judgment of the Sessions Court, Kottayam, in Sessions Case No. 60 of 1993 dated 29-12-1997 by which the accused was found guilty of offences punishable under S.449, S.302, S.397 and S.201, I.P.C. and sentenced him to undergo imprisonment for various terms including imprisonment for life under S.302, I.P.C.

(2.) The prosecution case in brief is that on the wee hours of 6-8-1988 at about 3 a.m. the accused a master criminal, notoriously known as 'Ripper' Chacko trespassed into the Kollammattel house in Thadiyampadu, Idukki District, through an opening made near the kitchen door of the house; got access to the bed room where the entire family consisting of Johny, his wife Mariakutty, daughters Rani (15) and Hony (11) and son Sony (9) were sleeping; hit at their heads with the butt of M.O. 12 axe causing grievous injury; removed the nighty of the girl Rani; gagged her mouth by inserting a portion of her own nighty and thereafter removed a gold chain of one sovereign and other ear wear of half sovereign from the deceased Rani; ear ring of 2 grams from Hony; took away currency notes of 60 rupees which was inside the drawer of the table in the house as also M.O. 13 revolver of Johny loaded with M.O. 14 cartridges and after completing the theft pured diesel from cans which were available within the house (deceased Johny owned a mini lorry which accounts for the possession of diesel) set fire to it and got out through the very same opening through which he had entered it and escaped. As a result of this carnage all the five inmates of the house were charred to death. P.W. 17 who is a butcher by calling and who happened to see the house on fire while returning after slaughter gave Ext. P1 F. I. Statement to P.W. 7 based on which Crime No. 151 of 1988 of Idukki Police Station was registered vide Ext. P7 F.I.R. Though the case was investigated nothing turned out suggestive of murder and the matter was ultimately referred as a fire accident. Immediately after the incident on 6-8-1988, the accused was arrested by P.W. 28, Head Constable attached to Rajakkad Police Station on 7-8-1988 at about 10.30 p.m. at Kunjithanni in connection with Rajakkad Police Station Crime No. 81 of 1988 and C.C.No. 224 of 1987 of J.F.C.M., Moovattupuzha. Though initially the accused resisted by show of force and threatened P.W. 28 and his party with M.O. 13 loaded revolver which was in his possession, he was ultimately overpowered by the police. After the arrest, M.O. 13 revolver with four rounds of cartridges loaded into it and currency worth Rs. 1,500/- and a suit case and cloth contained in it were seized under Ext. P18 mahazar. The accused was prosecuted before the J.F.C.M. Adimaly in respect of this incident for offences under S.332, S.324, S.506, IPC and under S.25(1)(a) of the Indian Arms Act, which, however, ended in Ext. X11 judgment of acquittal dated 17-9-1990 in C. C. No. 239 of 1989. In the absence of any clue or suspicion at that point of time, namely on 7-8-1988, the police did not pursue the matter against the accused under S.302, IPC. However, after about 4 years, while investigating another case P.W. 43, Detective Inspector suspected that the accused was involved in certain other cases which remained undetected for long time. He filed Ext. P31 affidavit before the J.F.C.M. Court, Chalakudy, who had kept the present accused in judicial custody there in connection with Crime 171 of 1991 under S.457, S.380 and S.461, IPC of Koratty Police Station and got him into police custody for the period from 4-5-1992 to 11-5-1992 as per Ext. P30 order. The accused was brought down to Kottayam and upon continuous interrogation on 10-5-1992 he confessed his involvement not only in this case, but also in 4 other cases. He was produced back before the J.F.C.M. Court, Chalakudy, on 11-5-1992, but P.W. 45 who was the Superintendent of Police, Crime Branch filed another affidavit on 11-5-1992 before the Court and got the accused again into custody pursuant to Ext. P32 order dated 11-5-1992 for 15 days from 11-5-1992 to 25-5-1992. Based on Ext. P13(a) information furnished by the accused while in police custody M.O. 12 axe was recovered from within a well near the seen of occurrence on 21-5-1992 as per Ext. P13 mahazar. Learning about the injuries caused to the deceased persons P.W. 45 filed a report before P.W. 30 Sub Divisional Magistrate and exhumed the bodies on 9-6-1992. After inquest as borne out by Ext. P19 series the bodies were subjected to fresh post - mortem examination by P.W. 39 and P.W. 40 who issued Ext. P24 to P26 certificates. After completing investigation charge was laid before the J.F.C.M. Court, Idukki, by P.W. 45 Superintendent of Police. The case was committed to the Court of Session, Thodupuzha, from where it was transferred to the Court of Session, Kottayam, as per the order of this Court in Cri. M. C. No. 1238 of 1993 dated 30-1-1993 along with few other cases involving the very same accused. After preliminary hearing charge under S.449, S.397, S.461, S.201 and S.302, IPC were framed and read over to the accused. The accused denied the charge and was thereupon put on trial. Before the Sessions Court altogether 45 witnesses were examined and Exts. P1 to P44 as well as M.O.1 to M.O. 14 were marked on the side of the prosecution. Exts. X1 to X11 as well as C1 and C2 were also marked in the case. On the side of the defence Exts. D1 to D2(b) were marked. While examining under S.313, Cr. P.C. the accused set up the plea of alibi which, however, boomeranged. The Sessions Court on an appraisal of the evidence on record found the accused guilty of the offences punishable under S.449, S.302, S.397, and 201, IPC and convicted him thereunder and sentenced him to undergo imprisonment for life under S.302, IPC, rigorous imprisonment for 7 years under S.397 read with S.392, IPC, rigorous imprisonment for 7 years and a fine of Rs. 10,000/- under S.449, IPC and rigorous imprisonment for 5 years and a fine of Rs. 10,000/- under S.201, IPC. Cri. Appeal No. 642 of 1998 is preferred by the State seeking enhancement of sentence into one of death and Cri. Appeal No. 105 of 1998 is preferred by the accused for reversing the order of conviction and praying for acquittal.

(3.) We heard Mr. K. S. Ajayaghosh (State Brief) who ably and meticulously argued the case of the accused in both the appeals as also Mr. Grashious Kuriakose, Public Prosecutor, who presented the case of the prosecution with exceptional skill and dexterity. Counsel for the accused was specially heard on the question of enhancement of sentence as well. We have also adverted to the contentions raised by the accused in his "requisition to re - consider the memorandum of Criminal Appeal No. 642 of 1998", being the State appeal for enhancement of sentence.