BENNY FRANCIS Vs. STATE OF KERALA

JUDGEMENT

(1.) Otherwise calm Thundipuzha river with shallow water will be in spate during rainy seasons when water raises up to the level of the bridge. During that period, youngsters of the locality, who know swimming, use to enjoy by jumping into the river from the bridge and swim when taking bath. They also use to find pleasure by forcibly putting their unwilling friends also into the river to join them. At about 4.30 p.m. on 22-7-1978, when the river was in spate, the six accused were enjoying their bath. Deceased Promod, one of their friends, was found walking through the nearly Nirmala hospital compound. At that time, accused formed themselves into an unlawful assembly with the common object of murdering Promod by throwing him into the water. They committed rioting and, in prosecution of the common object, accused 1 to 3 chased and caught the deceased, wrongfully restrained him and forcibly took him to the bridge against his protest and in spite of his cry that he did not know swimming and he would die if put into the water. All the accused then joined in throwing him into the water. He was washed off and drowned to death. This is the prosecution case.

(2.) Though charge was under Sections 143,147,341 and 302 read with Section 149 of the Indian Penal Code, conviction was only under Sections 143, 147, 341 and 304 (2) with the aid of Section 149 of the Penal Code. Second accused, who was under the age of 21, was released on probation. Case against the sixth accused, being a juvenile offender, was split up and sent to the children's court. Each among accused 1 and 3 to 5 was sentenced to undergo rigorous imprisonment for three months under Section 143, one year under Section 147, one month under Section 341 and five years under Section 304(2) read with Section 149 of the Penal Code, with direction to suffer the sentences concurrently. This is how accused 1 and 3 to 5 came up in appeal.

(3.) Fact that Promod fell into the river and was drowned to death at the time and place alleged by the prosecution is not in dispute. Plea of the accused is only that he had an accidental fall from the bridge by slipping while standing there. PWs. 1 and 5 to 8 are the occurrence witnesses, among whom, PW 8 turned hostile. Evidence of PWs 1 and 5 to 7, inquest report and the evidence of PW 17, who prepared the same, as well as the medical evidence of PW 9 and Ext. P6 post-mortem report prepared by him and the evidence of some other witnesses also proved that Promod died by drowning.