DAMODRAN DAMU Vs. STATE OF KERALA

JUDGEMENT

(1.) Sole accused is challenging his conviction for murder and the sentence for life.

(2.) Prosecution case and the evidence of the three occurrence witnesses (PWs 1 to 3) in conformity with it is this: Deceased Gopi, aged 28, and appellant Damu, aged 33, were friends. Gopi had some drinks already. Still he came in the company of the appellant at about 7 p.m. on 6-11-1983 to the Vellora toddy shop run by tappers, including PWs. 1 and 2, and had one glass of toddy each. Gopi appeared, to have got intoxicated. He jovially wanted homo-sexuality with appellant. Appellant pushed him out of the shop. Presumably realising that what Gopi said was a joke under the influence of drinks, appellant soon got friendly with him and voluntarily escorted him to his nearby room. But on the way Gopi snatched Damu's lunki and closed his room. When appellant attempted to attack with a stone and then complained to PWs. 1 and 2, PW 2 interfered and got back the lunki. When appellant wanted it to be given by Gopi himself, he offered to go to appellant's house and return it. But he repeated his desire to have homosexuality. Appellant gave a blow and Gopi fell down. Then he picked up a stone and hit Gopi thrice. PWs 1 and 2, who interfered, were scared away with threat of dire consequences. Helpless cries of Gopi also fell into deaf ears. Gopi was pulled up and pushed to a distance. He was again beaten down. Ignoring his cry to save his life, appellant placed MO4 iron rod across his neck and pressed it. Then he pulled out MO 5 dagger and gave four or five blows on his chest, abdomen and back of the chest. A final stab was then given asking whether he is still alive. Gopi was taken to the Government Hospital, Payyannur, District Hospital, Cannanore and finally to Medical College Hospital, Calicut, where he died at 8.25 p.m. on 8.11.1983.

(3.) There was faint moon-light and petromax light from neighbouring shops. Visibility is a matter that cannot be disputed. Competency of PW 1 to 3 also cannot be disputed as they are persons running toddy shop and tea shop near the scene. The faint and vague suggestions of fraternity towards the deceased, enmity to the appellant and persuasion by the police did not succeed. Therefore, the main grounds of attack were delay in giving first information statement and some minor omissions in Ext. P1 spoken to by PWs 1 to 3. The omissions in Ext. P1 first information, statement given by PW 1 are the use of iron rod and the pushing to a slightly distant place. PW 1 said these are only slips during narration and we think he could be believed especially when the medical evidence proves injuries with MO4. PWs 1 and 2 are tappers and rustic witnesses who had no special interest in the deceased except acquaintance. They escorted him to the hospitals and returned the next day without intimating the police either unaware of the need or thinking that someone else will do it. From the first two hospitals, intimations were given to the police. The doctors were correctly told about the time and place of occurrence, nature of assault and identity of the assailant. It is noted in the wound certificate. Intimations were received by the police only at 11.50 p.m. on 7-11-1983. On 7-11-1983, at about 8-30 p.m., when PW 14 Sub Inspector was on his way investigating another case, he got information about this case and there itself recorded Ext. P1 from PW 1. This is the position.