BALAN KANI Vs. STATE OF KERALA

JUDGEMENT

(1.) BALAN Kani, now 27, was tried along with another by the II Additional Sessions Judge, Trivandrum for offences punishable under Sections 302 and 323 read with Section 34, Indian Penal Code for having caused the death of one Lopez 24 and voluntarily caused simple hurt to his brother Gnanaseelan (P.W. 1). On the conclusion of the trial the second accused was acquitted of all the charges and the Appellant was acquitted of the charge under Section 302 but convicted under Section 304 I.P.C. and sentenced to rigorous imprisonment for 7 years.

(2.) THE occurrence was at about 6:30 p.m. on 3rd July 1978 and the scene of offence is a pathway which runs through Kani settlement, a little beyond the boundary junction near which the Lopez and P.W. 1 were residing. P.W. 1, P.W. 2, Lopez (the deceased) and C.W. 4 were all mazdoors employed at the material time in connection with the construction of Peppara Dam which is only about 6 kms. Away from the place of occurrence by a short cut. In the Kani settlement there are a number of trees belonging to the Government and some Kanis are also residing therein. On the date of occurrence after the day's work, P.W. 1 and his brother Lopez were returning home along the pathway passing through the place of occurrence. P.W. 1 was walking a little in front of Lopez. P.Ws. 2 and 4 were also returning after the day's work and coming almost closely behind P.W. 1 and Lopez. When Lopez and P.W. 1 reached the place of occurrence they saw the Appellant and the other accused sawing a tree standing in the settlement. On seeing this, P.W. 1 questioned the accused persons and as there was no reply P.W. 1 repeated the question. The second accused then called obscene words at P.W. 1 who retorted in the same language. The second accused then rushed towards P.W. 1 and beat him on his left cheek which was warded off by P.W. 1. He then kicked P.W. 1 on his left side below the stomach. Seeing P.W. 1 being attacked, Lopez who was just behind him hurried towards P.W. 1 and pushed back the second accused. Then the Appellant who came there drew out M.O. 1 knife from his loins and inflicted a stab on the left side of his chest below the neck of Lopez causing a bleeding injury. Lopez moved a litter crying that the first accused stabbed him and fell down. The injured was then removed to the boundary junction but before a car was brought for removing him to the hospital, Lopez died at 7 -30 p.m. Thereafter P.W. 1 want to the Aryanad Police Station and gave the first information statement Ext. P -1 at 12:15 a.m. on the same night. A case was registered on that basis and investigation was taken up by the Circle Inspector of Police. P.W. 8 held inquest over the dead body under Ext. P -6 inquest report. P.W. 6, doctor, held autopsy over the dead body and issued Ext. P -5 post -mortem certificate. The Appellant was arrested on 18th July 1978, 14 days after the occurrence.

(3.) THERE was no witness to be examined on his side.