JOJO ALIAS JOJOMON Vs. STATE OF KERALA

JUDGEMENT

(1.) THE 3rd Additional Sessions Judge (Adhoc I), Thodupuzha by judgment dated 6-10-2009 in Sessions Case No. 344 of 2007 found the respondent in D.S.R. No. 7 of2009, who is the appellant in Criminal Appeal No. 2294 of 2009, guilty for offence under Sections 302,323 and 4471.P.C. Consequently, he was convicted and sentenced to death and a fine of RS. 500 for offence under Section 302 I.P.C. For offence under Section 323 I.P.C, he was sentenced to rigorous imprisonment for one year. For offence under Section 447 I.P.C. he was sentenced to rigorous imprisonment for three months. THE capital sentence was referred to this Court as mandated under Section 366 of the Code of Criminal Procedure. It is in pursuance to that reference, D.S.R. was registered. Assailing the conviction and sentence, the appeal was preferred by the convict, (hereinafter referred to as the appellant) through the Superintendent, Central Prison, Thiruvananthapuram.

(2.) THE prosecution case in brief is that at early morning on 2-9-2006 the appellant committed murder of his mother and grandfather. THEn he set ablaze the dead bodies. In that process the appellant sustained burns. With the burns the appellant went to the house of P.W. 7 Nandini, a neighbour and requested help for fetching a vehicle to go to hospital. Taking the request seriously the husband of P.W.7 went out in search of vehicle. THEn the appellant entered the house of P. W.7 and threw out their radio. P.W.7 got scared and ran to the house of another neighbour late Damodaran. THE appellant followed her. Seeing it, P. W.7 entered the house of Damodaran and escaped through the back door. At about 6.00 a.m., the appellant trespassed into the property of deceased Damodaran situated in Mukkadan Kan in Konnathadi Village in Idukki District and requested to fetch a vehicle. P. W.3, the son of Damodaran, who is the husband of Santha, proceeded in search of vehicle THE appellant stated that he had arrived there after murdering his mother and grandfather. Hearing this, Damodaran asked P. W.3 to call the neighbours. P.W.3 instead of searching for vehicle, went to P. W. 1, an immediate neighbour and reported the matter. No sooner P. W.3 went out than the appellant started brutally assaulting Damodaran with an axe marked as M.0.1. Seeing it Santha cried aloud. P.W.6, Aliamma, another neighbour, hearing the cry rushed to rescue. THEn P.W.6 was slapped. P.W.6 got injured and fell down. Being got scared, P.W.6 fled away. THEn Santha attempted to intervene. Santha was also brutally assaulted with M.0.1. P. W. 1 rushed to the house and found that the appellant was standing with M.0.1 in his hand. Santha and Damodaran were found lying in the courtyard with bleeding inujuries. When asked, what he was doing, the appellant responded that he would murder all. P. W. 1 got scared and retreated. P.W. 1 also obstructed P.W.3 going to the house and asked to call the other neighbours. P.W.I asked the appellant to put down M.0.1. Obeying the commands of P.W. 1, the appellant put down M.O. and went out. P.W 1, with the help of P.W.2 and other locals caught the appellan and tied the hands and legs. Damodaran and Santha were lifted to the hospital in a jeep driven by P.W.8. THE matter was reported to the police. Police party headed by P.W. 18, the Sub Inspector of Police, Vellathooval Police Station rushed to the scene and the appellant was taken to the Taluk Headquarters Hospital, Adimali and arranged surveillance. P.W. 1 went to the Vellathooval Police Station and narrated the incident to P.W. 18. P.W. 18 recorded Ext. P-1 first information statement given by P.W. 1. On the basis of Ext. P-l, a case as Crime No. 56 of 2001 for offence under Section 447 and 307 I.P.C. was registered for which Ext. P-l (a) first information report was prepared.

(3.) THE appellant, who was in judicial custody, was produced before the committal court in pursuance to the production warrant issued. THE copies of the final report and other connected records were furnished to the appellant. THE offence u/s 302 IPC being triable by a Court of Session, by order dated 29-6-2007, the case was committed to the Court of Session, Thodupuzha, from where the case was made over to the Additional Sessions Judge. Since the appellant was not defended by a lawyer, Adv. Sri Joby George was engaged at State cost to defend the appellant. After hearing the appellant and the prosecution, on finding that there are materials to send the appellant for trial, a charge for the above said offences was framed. When read over and explained, the appellant pleaded not guilty. Hence, he was sent for trial. On the side of the prosecution, P.Ws. 1 to 19 were examined. Exts. P-1 to P-22 and M.Os.1 to 6 were marked. During cross- examination of P.Ws. 6 and 8, certain portions of their case diary statements were marked as Exts. D-1 to D-3. After closing the evidence for the prosecution, the appellant was questioned under Section 313 (1) (b) of the Code of the Criminal Procedure. THE appellant denied the incriminating evidence and further stated that he went to bed at 8 p.m. on the previous day. When he woke up He found himself amidst fire. He sustained burns. He ran out of the house and rushed to the house of P.W. 7 and requested P.W. 7 to fetch a vehicle to take him to the hospital. But she left the house. THEreupon, the appellant rushed to the house of P.W. 3 and requested to fetch a vehicle. P.W. 3 went out. Deceased Santha asked the appellant as to what happened to his mother. Stating that he ran out of the house on sustaining burns, the appellant went out of the house of Santha. When the appellant reached near his house, he heard a cry from the house of Santha. He rushed back to the house of Santha and found Santha and Damodaran lying in a pool of blood. Apprehending that those who had assaulted Santha and Damodaran might assault him, he picked up an axe that was lying at the courtyard. When the appellant went to the backyard of the house, P.W. 6 arrived there. Seeing the appellant, P.W. 6 fled away. On the way she fell down. By the time, P.W. 1 reached there and asked him to put down the axe. He obeyed P.W. 1. THEreupon, his hands were tied. THE police reached the scene and he was taken custody. Responding to the call to adduce defence evidence, D.Ws. 1 to 4 were examined. Exts. X-1 to X-3 were also marked. THE learned Additional Sessions Judge, on appraisal of the evidence arrived at a conclusion of guilt. Consequently, the appellant was convicted and sentenced as above. Now this reference and appeal.