GOPALAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appeal is by the 1st accused in S. C. No. 47 of 1960 on the file of the Sessions Court of Trivandrum. THEre were two accused persons in the case, the 1st accused being the younger brother and the 2nd accused the elder. THE 1st accused was charged under S. 302 & 324 and was also charged under S. 324 read with S. 34 of the Penal Code. THE 2nd accused was charged under S. 324 and S. 324 & 302 read with S. 34. THE prosecution version of the case was briefly as follows:

(2.) THE deceased Parameswaran alias Paramu or Paramu contractor and Pw. 1 were living as husband and wife for the past 8 years and they had one son aged 41/2 years by this connection. Pw. 1 had her first husband, who deserted her about 11 years ago and she had three children by that marriage, Pws. 2 & 8 being two of them. Paramu started visiting her as her second husband. About two weeks prior to the date of occurrence, Paramu was alleged to have seen the 1st accused coming out of the house of Pw. 1 and to have suspected that the 1st accused was on intimate terms with Pw. 1. THE 1st accused took to his heels on sight of Paramu and Paramu chased and caught him, brought him before Pw. 1 and beat him in her presence. THEreafter, in the presence of Pw. 4, who is a neighbour, Paramu entrusted Pw. 1 to the 1st accused and left the place in an angry mood. After this Paramu stopped visiting Pw. 1. It was further alleged by the prosecution that there were reports that Paramu and the 1st accused quarrelled at Sinkarathoppu and the 1st accused was having a grudge therefor and the two accused persons decided to retaliate. On the date of occurrence, that is on 13th September 1960, Paramu came to his paddy land near the house of Pw. 1 & Pw. 1, on seeing him, went to him with her youngest son. It was about 6-30 p. m. in the evening. She stood facing south in front of Paramu on a bund of a small channel flowing north to south and asked him to give her and her son maintenance. Paramu agreed to do it. THEy went on talking for about 20 minutes, when Pw. 6, the sister of the accused persons, seeing this, went and informed the accused persons, who were then near a reading room on the road south of the scene of occurrence. Pw. 7 was alleged to have been present at that place, when Pw. 6 went and told the accused persons. THE accused persons then came to their house, which is a little south of the scene of occurrence, and from there went to the scene THE 1st accused was armed with a cutting knife and the 2nd accused had a drawn pen-knife, M. O. 1. THE 1st accused approached Paramu from the south along the bund and the 2nd accused came through the compound on the west. On their coming near, Paramu tried to run away, when the 1st accused reached him and inflicted a stab injury on the right side of his back saying "stop there; are you the one to question me?" Paramu moved forward and stepped down into the fields and fell down. When he tried to get up propping himself on his left band, the 1st accused aimed another cut, which Paramu warded off with his right hand, whereby he got injured on his right arm. Paramu had a stick with which he aimed a blow at the 1st accused. By that time the 2nd accused approached Paramu and so the blow fell on the 2nd accused. Pw. 1 then tried to pull back the 2nd accused by catching his left hand, when he stabbed her thrice causing three injuries on her right fore-arm Pw. 2, the thirteen-year-old daughter of Pw. 1, came there and she threw mud at the assailants. Paramu, in the meantime, got up and ran northwards, when the accused persons also left the place. By that time, Pw. 8, the son of Pw 1, also came to the scene and he took Pw. 1 away. Pws. 1 & 8 then started to go to the police station and also to get medical aid. When they reached the road, they found Paramu lying there, when a car passed that way. THE car was stopped and both Paramu and Pw. 1 were taken in the car to the police station, where Pw. 15, the constable in charge of the police station, made an entry in the general diary and sent them to the General Hospital, as the condition of Paramu was serious. A little thereafter, Pw. 15 went to the hospital and recorded Ext. P1, the first information statement, from Pw. 1 at 8. 15 p. m. , as Paramu was not then in a position to talk Mahazars were prepared regarding the persons of Pw. 1 and Paramu and the blood stained clothes worn by paramu were also recovered Pw. 15 thereafter came back to the police station and registered a case under S. 324 read with S. 34, Penal Code. A little later the 2nd accused came to the station and gave information that he was beaten, whereupon another case was registered against Paramu, Pw. 1 & Pw 8. Three days thereafter, that is on 16th September, 1960, at 5-25 p. m. Paramu died. THE 2nd accused was also admitted and treated in the hospital and was discharged on 21st September 1960 when he was arrested. After his arrest he was alleged to have pointed out M. O. 1, the knife, said to have been used by him and this was recovered. After the preliminary enquiry, the case was committed to the sessions.

(3.) WHEN the appeal came up for hearing before one of us, notice was issued to the 1st accused to show cause why he should not be convicted under S. 302, Penal Code. After notice the appeal came up again before a Division Bench, when the Court issued another notice to the 2nd accused to show cause why the order of acquittal in his favour should not be set aside. After the 2nd notice the appeal has now come before us for final hearing.