JOSE ALIAS KOLLY JOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) ON the morning of 14 th April 1970(Vishu day)at about 6 a.m.the dead body of one Divakaran Nair,a driver in the Central Reserve Police,was found in the Railway puramboke by the side of the Railway line,near Wadakkancherry Station on the Shoranur -Trichur Railway line.On the first information launched by one Baby(P.W.2)living near the railway line,investigations started and a case was registered against the five appellants now before us.The charges against them,were that on 13 th April 1970 at about 11 p.m.they formed themselves into an unlawful assembly with the common object of commit­ting the murder of the deceased and to cause disappearance of evidence,punishable under section 143;that on the same day,accused 1 to 4 with the intention of committing murder of the deceased beat and fisted him and threw him down in the eastern courtyard of the house of the accused and there by caused his death;that on the same day accused 1 and 2 tied Divakaran Nair's hands and feet,the first accused brought a tin of poison,the second accused opened the mouth of Divakaran Nair,and the first accused poured it in with such intention and under such circumstances,that if they,by that act caused death,they would have been guilty of murder - an offence punishable under section 307 of the I.P.C;that on the same day and at the same time,the accused caused evidence of the said offence to disappear by placing the dead body of Divakaran Nair,near the railway line with the intention of screening themselves from punishment,an offence punishable under section 201 of the I.P.C.; and finally,that on the same day the fifth accused along with others were members of an unlawful assembly in prosecution of the common object of which,namely committing murder of Divakaran Nair,accused 1 to 4 fisted and beat him and threw him down on the eastern courtyard of the first accused's house,the first and second accused tied his hands and feet and 1 st accused poured poison into his mouth,accused 2 opened his mouth,and that all the accused are thereby guilty of offences under sections 149,307 and 302 of the I.P.C.as aforesaid.

(2.) THE learned Sessions Judge found the accused 1 to 4 guilty of murder under section 302 read with section 34,of the Indian Penal Code.He sentenced the first accused to death,subject to confirmation by this Court;and accused 2 to 4 to imprisonment for life.He found them guilty also of the offence under sections 143 and 201 of the I.P.C,but in view of the conviction for the offence of murder he did not impose any separate sentence.He found the fifth accused guilty of the offence under sections 143 and 201 of the I.P.C.and sentenced her to rigorous imprisonment for three months and one year respectively.On the latter count,she was further sentenced to pay a fine of Rs.250 and in default to undergo rigorous imprisonment for a period of two months,the sentences to run concurrently.Criminal Appeal No.140 of 1971 has been preferred by all the accused against their conviction and sentence,and the Referred Trial has come on before us for confirmation of the sentence of death,passed against the 1 st accused.

(3.) OECM "(I am killed ),and that whence was taken away,M.O.6,which was kept leaning against the wall had fallen down and she did not remember exactly when it fell.She admitted having deposed in the committal court that when the deceased was thrown out,M.O.6 was lying in the courtyard.In the Sessions Court she said that when the deceased was thrown out he fell on the loose and soft ground and not on M.O.6.She identi­fied Exts.P -4 and P -5 as the accounts maintained in the first accused's brothel.