RAGHUNATHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) APPELLANTS in Crl. Appeal No. 161/97 were accused in Sessions Case No. 48/93 on the file of the 1st Addl. Sessions Court, Palakkad. They were charge sheeted for offences punishable under S.307 and 302 read with S.34 of the Indian Penal Code. After trial, first accused was convicted and sentenced to undergo rigorous imprisonment for a period of four years under S.304 Part II IPC. Second accused was convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of six months under S.324 of IPC. Challenging the conviction and sentence passed in the case, accused filed Crl. Appeal No. 161/97. Not satisfied with the conviction and sentence, State filed Crl. Appeal No. 404/98. Father and mother of the deceased, PWs 2 and 3, filed Crl. R. P. No. 795/97.

(2.) FIRST accused is the son of the second accused. PW 1 and the deceased Vijayakumaran are the children of PWs 2 and 3. Second accused is the brother of PW

(3.) KUTTAN Nair for getting assistance of some people for taking Vijayakumaran from the scene of occurrence. He also telephoned to Vaniamkulam and Ottapalam for getting a jeep. PWs 4 and 5 and two other persons came to the house of PW 2 and with the assistance of PW 5 and two others, Vijayakumaran was taken from the scene of occurrence to his house. Later, PW 4 went to Kolapulli and brought a jeep and injured PW 1 and Vijayakumaran were taken to the Government Hospital, Ottapalam. The Doctor at the Government Hospital, Ottappalam, on examination, declared that Vijayakumaran was dead. PW 1 was treated as an out patient. On getting intimation from the Government Hospital, Ottapalam, police came to the hospital and recorded Ext. P1 First Information Statement given by PW 1 and on the basis of that FI statement Ext. P35 transfer FIR was registered by the Ottapalam police and that FIR was transferred to Cherupulassery police station since the place of incident was within the Cherupulassery police station. On getting the transfer F.I.R., the Cherupulassery police registered Ext. P38 FIR. PW. 25, Circle Inspector of Police, Ottapalam conducted the investigation. Prosection examined PWs 1 to 25 and marked Exts. P1 to P15. MOs. 1 to 8 were also marked on the side of the prosecution. Defence examined DWs. 1 to 7 and marked Exts. D1 to D18. 3. As far as the evidence is concerned, most important witness is PW 1. He was not only the brother of the deceased who was present at the scene of occurrence, he was also an injured witness and it is he who gave the first information statement Ext. P1. He deposed that on 20.4.1992, while he was standing at the gate of their courtyard alongwith his brother, he saw accused 1 and 2 on the disputed property with pick axe and spade (MOs. 1 and 2), that on seeing them on the disputed property, he alongwith his brother went there and asked why they entered into the disputed property. That If this is correct, the deposition accused hit PW abused pick axe and when the hit was ensued a quarrel. Then second that the accused 1 with a PW 3 and obstructed them on avoided, at the instigation occurrence etc. cannot a blow was given by the to the house their way to the place of of the second accused, be correct. PW 1 went first accused and informed Vijayakumaran with the handle of the mother, PWs 2 and 3, etc. also on the head of about the incident to the father and spade and thereby Vijayakumaran sustained true. It appears that the story that According to PW 1,place of occurrence, cannot be fatal injuries and he fell down. while coming to the first accused beat Vijayakumaran with them handle of the only to get A1 and A2 identified by PWs 2 and accused obstructed the was made out spade after removing the blade. Thereafter, 3 also. As per was beaten by a pick axe on several side of this had and he Vijayakumaran Ext. P1 Kakkulath Marakkar and the rightother persons headseen the sustainedThose independent witnesses were not the scene of occurrence came there incident. injury. Thereafter, he ran away from examined. PWs 2 and 3 seeing the only on of the the cry of PW 1 probably after PW 1 further deposed that accused attempt hearing accused to attack him again. the incident. Apart from Ext. D1 portion followed him upto the pump house of their property. P1 statementhis parents, PWs 2 marked, there are many omissions also in Ext. He informed compared to the and 3, about the before the Court. Those werescenebrought out in cross PWs 2 and 3 to deposition given incident and returned to the also of occurrence with examination. attend on Vijayakumaran who was lying unconscious at the scene of occurrence with the injuries sustained deceased deposed more or less in on same fashion place 1 4. PW 2 father of theon his head. He also deposed that the his way to the as PW of occurrence with PWs 2 and 3, accused obstructed them was coming to will place 3 deposed. He also stated when he alongwith his wifeand said that they the kill PW of occurrence, accusedaccused left themplace, they saw A1 with spade andof occurrence also. Only after the obstructed the and they could reach the place A2 with pick where Vijayakumaran was the unconscious. obtained an order from to RDO that axe. He also stated that lyingdeceased had PW 3 mother asked PW 1 thebring water and PW 2 father went to the disputed property. But, lifted the that of Vijayakumaran nobody should enter intocall a jeep and doctor. PW 3he stated headhe was not aware and placed it order lap. When by the High Court. PW 3 tried him, as per to that the aboveon her was stayed water was brought, According to to give waterthe partition deed, disputed 30 centswasland successful. PW 1 also sister. But, he was not Vijayakumaran. But, the attempt of not belonged to his wife's deposed regarding the removal of how the deceased got it. He of occurrence to property was in the able to say Vijayakumaran from the scene deposed that the their house with the assistance of the deceased others. PW 4 Kuttan Nair by A2 a Jeep No. 10575/91. possession of PW 3 and two and an order was obtainedbrought in O. P. and PW 6, his He denied the suggestion thatthe jeep. There was undue and threatened PW 3 etc. on another brother, also came in accused obstructed them delay in getting a Jeep. Even though PW the place eye witness, was was lot of contradiction He was positive that their way to 1 was an of occurrencethere subsequently developed.in his deposition with his son information toddy. PWgiven to theof the deceased, also deposed more differed the first never took statement 3, mother police. In cross examination also, he or less from the deposition in chief. accused threatened he was he positive. After he came similarly and also stated that In chief examination, her whilevery was with the victim. PW back with his PW 2 and mother he brought the deceased Vijayakumaran. According 3 is the wife of father and mother of PW 1 and water as requested by his mother. But, thereafter he PW 1 went for bring a water cross examination, he deposed etc., to her, when was sent away to bringingjeep. In and PW 2 for bringing a jeep that the accused threatened her and she saw the pick axe and spade with the accused. Jeep phone 4. In Ext. P1 first information statement, he has stated that on hearing his cry, father and ran towards the place of occurrence. Seeing this, the accused mother, PWs 2 and left the place with the pick axe and handle of the spade and this incident was seen by many persons. In Ext. P1 first are correct, version of is 3 that after they arrived, when If depositions of PWs 1 and 2 information statement itPWrecorded as follows: PWs 1 and 2 left the place for bringing water and jeep, accused were there threatening