SIVAKUTTY @ BOMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) Six accused persons faced trial for offences punishable under Sections 120B, 143, 147, 148, 458, 324, 326, 307, 302, 394 r/w 149 IPC and Sections 115 and 201 IPC and Section 27 of the Arms Act, 1959. After trial, the learned Sessions Judge (Fast Track Court-I), Thiruvananthapuram found accused Nos. 2 to 5 guilty of the offences punishable under Sections 143, 147, 148, 449, 324, 326 and 302 r/w 149 IPC. A1 and A6 therein were acquitted by that court. The convicted accused, A2 to A5 have filed the appeals, Crl. A. Nos. 206/10, 1913/06, 1400/06 and 1384/06. The State has preferred appeal, Crl. A. No. 540/11 challenging the acquittal of A1 and A6. The gist of the prosecution case: Deceased Rajamma and her son Vijayakumar (C.W. 5) and his wife Rajeswary (P.W. 4) and their daughters Padma (P.W. 1) and Lovely (P.W. 3) were residing in the house, C.V. Bhavan, bearing No. 4/717 of Balaramapuram Panchayat. C.W. 5 and P.W. 4 had another daughter by name Meena who fell in love with A1 and later got married against the wishes of C.W. 5 and P.W. 4. Meena and her husband (A1) started residing in the eastern portion of the building, C.V. Bhavan without the consent of C.W. 5 or P.W. 1. That portion was in fact allotted to P.W. 1 as her share. So, P.W. 1 filed a suit against Meena and her husband as O.S. No. 50 of 1998 before the Munsiff's Court, Neyyattinkara. That suit was decreed in favour of P.W. 1. Execution petition was filed by P.W. 1 against A1 and Meena. Thus A1 had grouse against P.W. 1 and the other members of C.V. Bhavan. To wreck vengeance A1 entered into a criminal conspiracy with A2. A2 was alleged to have been involved in so many criminal cases. The conspiracy alleged to have been hatched was to finish off the family members of C.V. Bhavan. In order to carry out the same A2 got the assistance of A3 to A6. In order to facilitate entry to the terrace of C.V. Bhavan, A1 made a ladder (M.O. 18) and kept slanting on the eastern wall of the northern outside bath room of Libra building which was part of C.V. Bhavan mentioned above. After the midnight of 28.4.2002, i.e. at about 2 AM on 29.4.2002, A2 to A5 wearing socks on the legs and A2 to A4 wearing gloves on their hands climbed up the terrace portion through M.O. 18 ladder. They caused disconnection of the telephone by cutting the wire and thereafter A2 and A4 kicked open the door of the eastern wall of the first floor of the house and trespassed into the first floor. A5 and A6, who also trespassed into the first floor, took their position in the staircase for guarding the scene. A2 to A4 thereafter entered the ground floor of the house through the staircase. A2 forcibly pulled open the door of the northern hall of the house and thereafter trespassed into the northern hall room of that house. Thus accused committed house-breaking by night and trespassed into the residential house in prosecution of their common object to cause the murder of the inmates of that house or anyone of them and also to voluntarily cause grievous hurt to all or any of them. When P.W. 1 questioned them as to who they were, A3 with the sword cut P.W. 1 on her right and left upper arm. A part of the left thumb finger was cut and severed. A3 with the same sword cut P.W. 1 on her left forehead, left hand etc. A3 with the same sword cut P.W. 3 also on her face including nose. He also cut C.W. 5 (Vijayakumar) twice on the left and right sides of his forehead. A2 at that time beat P.W. 4 on the left side of her forehead with a G.I. Pipe. He also beat P.W. 3 on the left side of her wrist. Rajamma, an old lady who was in the same hall was beaten by A2 with that G.I. Pipe on her forehead near right ear. A4 also cut P.W. 3 with a sword on her left hand. P.W. 1 and others started making alarm and then the accused left the scene. Terrified by the unexpected attack by the accused, P.W. 1 and others were afraid to go out of the house to get the help of others to go to the hospital. Hence, they remained in the very same room after locking the door. At about 6.30 AM on hearing the sound of the calling bell, they opened the door and went out of the house. They went to the house of P.W. 22, one of their relatives where P.W. 3 entrusted her child. The people who gathered there sent P.Ws. 1, 3 and 4 to Balaramapuram Police Station in an autorickshaw. A police constable who was in front of the police station on seeing the injured persons, directed them to go immediately to the hospital. When those three persons came out of the station-compound, P.W. 2, the autorickshaw driver who was a member of the 'Act Force' saw them. He and his two friends hired a taxi and took P.Ws. 1, 3 and 4 in that taxi. On the way the injured told P.W. 2 that two other persons had also sustained serious injuries and they were in their house and so on the way, the car was stopped in front of C.V. Bhavan where the two friends of P.W. 2 got down. The injured persons mentioned above were taken to the Government Hospital, Neyyattinkara, while C.W. 5 and deceased Rajamma were taken in another car by the friends of P.W. 2 mentioned above to the Government Hospital, Neyyattinkara. From there the injured persons were referred to Medical College Hospital, Trivandrum. P.W. 2 who had accompanied the injured persons to the Medical College Hospital, Trivandrum returned to the place near Balaramapuram Police Station where he had kept his autorickshaw. As directed by the police, he went to the police station and gave Ext. P5 F.I.R. Statement which was recorded by P.W. 36, the then Sub Inspector of Police at 9 AM on 29.4.2002 on the basis of which Ext. P5(a) F.I.R. was registered by him as crime No. 184 of 2002. Investigation was taken over by P.W. 37, the then Circle Inspector of Police, Neyyattinkara. P.W. 37 went to the scene of occurrence along with P.W. 12 (Asst. Director of F.S.L.) and prepared the scene mahazar.

(2.) Rajamma, the injured succumbed to the injuries at 11.10 AM on 29.4.2002 at Medical College Hospital, Trivandrum. The accused were arrested by the police on different occasions and they were questioned. The material objects were recovered based on the disclosure statements of those accused persons. After completing the investigation, the charge sheet was laid against six accused persons for the offences as mentioned earlier.

(3.) P.W. 1 to P.W. 38 were examined and Exts. P1 to P49 were marked. The material objects, M.O. 1 to M.O. 34 were identified and marked. The accused contended that it is a fabricated case. Exts. D1 to D12 were marked on the side of the defence, out of which Exts. D1 to D9 and Ext. D12 are portions of the statements of the prosecution witnesses marked as contradictions. Exts. D10 and D11 are the certified copies of the judgments in two criminal cases.