STATE OF KERALA Vs. CHERIYAN

JUDGEMENT

(1.) This Appeal by leave, by the State of Kerala is directed against the Order of acquittal in S.C No. 23/85 on the file of the Court of Session, Thalassery Division. The four Respondents stood trial for the offence under S.302 read with S.34 IPC, in that they, in furtherance of their common intention, caused the death of one Thomas at or about 10 P.M. on 5-8-1984 at Arayangad, by cutting him with a chopper. The motive is said to be enmity on account of political differences.

(2.) On the night of occurrence, the deceased was returning from Kuthuparamba to his house at Alachery. He alighted from a bus, and was walking homewards when he met the Respondents. There was a conversation between the deceased and Respondents, and as they neared the shop of one Kurian, Respondents are said to have waylaid and stabbed the deceased. Hearing his cries, PW 2 came on the scene and saw the deceased lying injured. He informed PW 1 - the son of deceased, and PW.1 took the deceased in a bus to the Kuthuparamba hospital. P W11 Doctor examined him and found him dead. He sent Ext. P12 intimation to the Police. Later, PW.1 made Ext. P1 first information statement before the police, and Ext. P1 (a) first information report was registered. Ext. P4 is the Inquest Report, while Ext. P5 is the scene mahazar. PW.11 performed an autopsy on the dead body and issued Ext. P11 Certificate. Respondents were arrested on 20-9-1984. Pursuant to information furnished by fourth respondent, M.O. 11 chopper was recovered under Ext. P22 mahazar. PW 16 is the attestor to the mahazar. Respondents 1 & 2 are said to have made a confession to P W3. PW 4 states that she saw the deceased and the accused together around the time of occurrence. PW 21 -the Judicial Magistrate of First Class, recorded statements under S.164 of the Code of Criminal Procedure from PWs. 23, 9 & 13. On this evidence, respondents were sent up for trial. Their case was one of denial.

(3.) The learned Sessions Judge did not choose to accept the evidence of PW 3, regarding the extra judicial confession. According to him, the evidence was not reliable The other evidence was not considered conclusive by the Sessions Judge.