RAJAN, S/O.KOCHUKUNJU Vs. STATE OF KERALA

JUDGEMENT

(1.) Appellant, the second accused in S.C. No. 216 of 2004 on the file of Additional Sessions Court, Mavelikkara, was convicted and sentenced to imprisonment for life and a fine of Rs. 15,000/- and' in default rigorous imprisonment for two years for the offence under Section 302 read with Section 34 of the Indian Penal Code. The first accused was acquitted. Appeal is filed challenging the conviction and the sentence. Prosecution case is that on the night of 14.3.2003 PW2 Jijo George, the son of PW1 Ponnamma George and deceased Georgekutty, was reading the books inside the house. PW2 was then a student of SSLC. Deceased Georgekutty had returned after his work and was sitting near PW2. The two accused were walking along the canal road, which lies to the west of the residential house of deceased Georgekutty, where he resides along with his wife and children. When the accused made loud noise while walking, Georgekutty came out of the house and asked them not to make noise as his son is studying. It was not liked by the accused. There was a verbal altercation between the deceased and the accused and also a push and pull. The accused then proceeded towards the south. By 11.30 pm. Georgekutty went near the well, which lies to the north-west of the residential house, to take bath. After completing bath when Georgekutty was drying himself with a thorthu, the two accused came along the canal road. They stood opposite to the house of Georgekutty and asked where Georgekutty is. Hearing it Georgekutty moved towards the courtyard First accused asked the second accused to throw a stone at Georgekutty with the common intention to cause his death. Second accused took MO1 granite stone and threw it at Georgekutty, which landed on his right hand in between the elbow and the wrist causing a bleeding injury. The accused left the scene. PWs 1 and 2 took Georgekutty, who was sitting on the ground sustaining injury, to the house. PW2 went to fetch an autorickshaw. PW2 engaged PW4 Sundaran Nair and in his autorickshaw took the injured accompanied by PW1 to the hospital. They first reached N.S.S. Medical Mission Hospital, Pandalam. The doctor, finding the serious injury, advised them to take him to Medical College Hospital. The injured was taken in an ambulance to the Medical College Hospital. By the time the vehicle reached Chengannur, Georgekutty became unconscious and therefore, the ambulance was taken to the nearby Century Hospital. PW11 Dr. Abraham Cheriyan examined Georgekutty and prepared Ext. P7 wound certificate at 1.45 a.m. on 15.3.2003. Georgekutty breathed his last at 2.30 a.m. PW1 reached the police station at 9 a.m. and furnished Ext. P1 F.I. Statement which was recorded by PW10, the Sub Inspector. He prepared Ext. P1(a) F.I.R. and registered the crime and informed PW13, the Circle Inspector who took over the investigation. PW13 reached the hospital and prepared Ext. P2 inquest report. PW13 furnished the necessary requisition for conducting postmortem examination. PW6 Dr. Amit Rawath conducted the autopsy and prepared Ext. P5 postmortem certificate. PW13 reached the scene of occurrence and prepared Ext. P3 scene mahazar and seized MO1 granite stone from the scene of occurrence allegedly used by the accused for inflicting the injury on the deceased. PW13 arrested the accused on 17.3.2003 at 10.45 a.m. After completing the investigation charge was laid before judicial First Class Magistrate, Mavelikkara, who committed the accused to Sessions Court, Alappuzha. The learned Sessions Judge made over the case for trial to Additional Sessions Court, Mavelikkara. The accused were defended by a counsel of their choice.

(2.) When charge for the offence under Section 302 read with Section 34 IPC was framed and read over, the accused pleaded not guilty. Prosecution examined 13 witnesses and marked 13 exhibits and identified four material objects. After closing the prosecution evidence the accused were questioned under Section 313 Cr. P.C., When the incriminating evidence were put to the accused, they denied the incriminating evidence and additionally contended that they are innocent and there was no enmity with the deceased at any point of time. The learned Additional Sessions Judge though called the accused to enter on their defence and adduce evidence, finding that it is not a case for acquittal under Section 232 Cr. P.C., the accused did not adduce any evidence.

(3.) Learned Additional Sessions Judge on appreciation of evidence found that the prosecution case as against the first accused is not believable or trustworthy and therefore acquitted him. Relying on the evidence of PWs 1 and 2, the widow and the son of the deceased, it was found that the second accused inflicted the injury on the right hand of deceased Georgekutty. by throwing MO1 granite stone. Relying on the evidence of PW6, the doctor, with Ext. P5 postmortem certificate it was found that the said injury caused the death and the second accused with the intention to cause the death of Georgekutty threw the stone and inflicted the injury and caused the death. It was found that clause secondly and thirdly of Section 300 IPC are attracted and therefore, the offence committed is punishable under Section 302 IPC. Appellant was convicted for the offence under Section 302 IPC and sentenced as stated earlier. Though in the operative portion of the judgment it was shown that the conviction is under Section 302 read with Section 34 IPC, the finding on point No. 1 was that appellant committed the offence under Section 302 IPC.