CHACK ALIAS ANIYAN KUNJUS Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal arises out of Sessions Case 30/95 on the file of the Court of Session, Kottayam, in which the appellants were the accused. The allegation against the appellants was that they committed the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. After trial, on an appreciation of the evidence, the trial court found that the appellants committed the offence punishable under Section 302 read with Section 34 of the Indian Penal code and convicted them thereunder. On hearing the appellants for life and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo simple imprisonment for three months each. This appeal is filed challenging the order of conviction and sentence of the appellants by the learned Sessions Judge.

(2.) The allegation is that on 16.6.1994 at 11 pm., the appellants in furtherance of their common intention to cause death of Kuttappan assaulted him by beating with iron rod, handle of axe and handle of spade, and he died as a result of the injuries suffered in the above incident. The case of the prosecution is that the appellants who were having previous enmity had the common intention to cause the death of Kuttappan. The evidence available in this case is that Kuttappan who was taken to kanjurapply Government Hospital and the Doctor who examined him at 2.45 in the night found that he was death. Ext. P2 intimation was sent by the Doctor to the Police Station. It was PW1 who gave the information which led to the registering of eh crime against the appellants under Section 302 read with Section 34 of eh Indian Penal code. PW1 is having a provision shop at Mukkada Junction, within the limits of Manimala Police Station. PW2 and Kuttappan went to the shop of PW1 for purchasing provision and at that time, appellants 1and 2 and CW 3 and CW4purchased beedi and some other articles from the shop of PW1 and went away from that shop. When Kuttappan was about to leave the shop after purchasing rice and other articles from the shop of PW1, it was found that his umbrella was missing. Thinking that appellants 1 and 2 and others would have taken the umbrella. PW2 and Kuttappan went to see them and on intercepting them asked them whether they took the umbrella from the shop of PW1. Then they told Kuttappan that they did not take the umbrella and PW2 and Kuttappan went back to the shop of PW1. After some time, they again went in search of the appellants 1 and 2 and CW3 and CW4 to ask them whether they had taken the umbrella. On the way, they met the first appellant and CW3 and CW4 and there ensued a quarrel. There was an altercation and Kuttappan pushed the first appellant by his neck and the first appellant fell down, as a result of which he suffered injury on the back of his head. Then, PW2, PW3 and Kuttappan went away from the place where that altercation took place and PW2 told the appellants that the umbrella would have definitely been taken by appellants 1 and 2 and others and they went again to ask the place of occurrence, the appellants assaulted Kuttappan with an iron rod and then Kuttappan ran away from there towards north and he crossed the channel. Since the second appellant on showing the iron rod asked PW2 to go away from there, he ran away from the place where the second appellant assaulted Kuttppan by beating with an iron rod and he came back again. The case of the prosecution is that the appellants chased Kuttappan, who ran towards north and crossed the channel and again assaulted him by beating with the weapons mentioned above. Overt acts are alleged against the appellants 1 to 3 and the allegation against the 4th appellant is that he lit a torch, so that the other appellants could assault Kuttappan in the light of the torch. Ob being assaulted, Kuttappan suffered injuries and he fell in the channel. The allegation is that after falling in the channel also, Kuttappan was beaten up. PW2 ran away from the place of occurrence and he did not tell anybody about the incident in the night.

(3.) PW1 who was sleeping in his shop in the night, at about 1 o Clock went out of the shop for passing urine and then he heard somebody crying in a feeble voice mother, mother . Then he did not go to the direction from where that feeble or was heard. He went to inform the neighbours that somebody was crying by lying near to his shop. He went to the house of PW3 also to inform him about what he heard from the direction of the channel. PW1 and CW8 went to the place from where the cry was heard and PW3 also went there. Then, according to prosecution, Kuttappan said that appellants 1 and 2 and the children of the second appellant assaulted Kuttappan to the point of killing him. After that, Kuttappan was taken in a Jeep to Kanjirappally government Hospital. The Doctor who examined him in the hospital said that he was dead.