BALAN KAMI Vs. STATE OF KERALA

JUDGEMENT

(1.) Balan Kani, now 27, was tried along with another by the II Addl. Sessions Judge, Trivandrum, for offences punishable under S.302 and 323 read with S.34 Indian Penal Code for having caused the death of one Lopez, 24, and voluntarily caused simple hurt to his brother Gnanasseelan (Pw. 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 S.302 but convicted under S. '304' IPC. and sentenced to rigorous imprisonment for 7 years.

(2.) The occurrence was at about 6.30 p.m. on July 3, 1978 and the scene of offence is a pathway which runs through Kani settlement, a little beyond the boundary junction near which Lopez and Pw. 1 were residing. pw. 1, pw. 2, Lopez (the deceased) and Cw. 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, Pw. 1 arid his brother Lopez were returning home along the pathway passing through the place of occurrence. Pw. 1 was walking a little in front of Lopez. Pws. 2 and 4 were also returning after the day's work and coming almost closely behind Pw.1 and Lopez. When Lopez and Pw. 1 reached the place of occurrence they saw the appellant and the other accused sawing a tree standing in the settlement. On seeing this, pw. 1 questioned the accused persons and as there was no reply Pw; 1 repeated the question. The second accused then called obscene words at pw. 1 who retorted in the same language. The second accused then rushed towards Pw. 1 and beat him on his left cheek which was warded off by Pw. 1. He then kicked Pw. 1 on his left side below the stomach. Seeing Pw. 1 being attacked, Lopez who was just behind him hurried towards Pw. 1 and pushed back the second accused. Then the appellant who came Were 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 little 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 Pw. 1 went to the Aryanad police station and gave the first information statement Ex. Plat 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. Pw.8 held inquest over the dead body under Ext. P6 inquest report. Pw. 6, doctor, held autopsy over the dead body and issued Ext. P5, post mortem certificate The appellant was arrested on 18-7-1978, 14 days after the occurrence

(3.) The plea of the appellant was one of complete denial adding that he was not at the place of occurrence. He stated further that Pw. 1 and Lopez and others attempted to cut a tree belonging to one Sankaran Kani and that there ensued a quarrel between Sankaran Kani's people and these people, in the course of which Lopez sustained the injury.