BALAKRISHNAN Vs. STATE OF KERALA, INSPECTOR OF POLICE

JUDGEMENT

(1.) Can an accused be convicted for an offence under Section 302 of Indian Penal Code independently, in the absence of a charge independently for that offence, when the co-accused were acquitted and the charge was for the offence under Section 302 r/w 34 of Indian Penal Code. The appellant, the first accused in SC No. 306/07 on the file of the Sessions Court, Ernakulam, was tried along with two other accused for the offences under Sections 120B, 449 and 302 r/w 34 of Indian Penal Code. The prosecution case was that in furtherance of their common intention to cause the death of Ismail Thankachan, the husband of PW2, Sulekha and father of PW1 Shebin, the three accused hatched a criminal conspiracy and in furtherance of the common intention and the criminal conspiracy, they trespassed into the house of the deceased Ismail Thankachan, in a three cent colony at Kuttamangalam panchayat, at about 2.30 am on 27.06.2004, inflicted injuries and caused his death and thereby committed the offences. PW1, PW2 and deceased Ismail Thankachan were residing in House No. 16/374 of Kavalangad panchayat. Ismail Thankachan had earlier voluntarily caused hurt on the first accused with a dangerous weapon, on 5.4.2004, i.e., two months prior to the date of incident. Crime No. 61/04 was registered by PW16, the Assistant Sub Inspector of Police for the offence under Section 324 of Indian Penal Code, under Ext.P18 F.I.R. based on Ext.P17 F.I. statement of the injured first accused. PW17, the Sub Inspector conducted the investigation and laid Ext.P19 final report on 26.5.2004. On the night of 27.06.2004 PW1, PW2 and deceased Ismail Thankachan slept inside the house after taking dinner as usual. While sleeping, Ismail Thankachan disclosed to PWs 1 and 2 that he had met the first accused on that day and the first accused, in turn, threatened him that he will kill Ismail Thankachan. PW2, along with Ismail Thankachan, were sleeping inside a mosquito net and PW1, aged only 13 years at that time, was sleeping separately near the door. It was a single room house. A portion of the room was being used as kitchen and the remaining portion for sleeping. The door was made of tin sheet. It was being closed by tying with a plastic rope. Hearing the sound of somebody cutting the plastic rope of the door to make forcible entry into the house, PW1 woke up. Fearing that assailant is entering the house, PW1 hid himself behind a suit case inside the room. PW1 could thus witness the whole incident. The three accused trespassed into the house. They attacked Ismail Thankachan by pulling him out and inflicting injuries with chopper, knife and spanner after spotting him with the aid of a torch light. After ensuring that Ismail Thankachan is no more, the assailants left the place. PW1 and PW2 found that Ismail Thankachan is not breathing. PW1 went to the house of PW3 at about 2.30 am and informed him about the incident. PW3 and others gathered there. PW1 furnished Ext.P1 F.I. Statement at about 9 am. It was recorded by PW17, the Sub Inspector of Police, who prepared Ext.P1(a) F.I.R. and registered Crime No. 97/2004 for the offences under Sections 449 and 302 read with Section 34 of Indian Penal Code against the appellant and two identifiable persons. PW18, the Circle Inspector of Police took over the investigation. He reached the house and prepared Ext.P5 inquest report at about 11 am. He sent the body of Ismail Thankachan for post-mortem examination. PW14, Dr.Vijaykumar, the Assistant Professor of Forensic Medicine, Alappuzha conducted the autopsy and prepared Ext.P15 post-mortem certificate. PW14 found that the death of Ismail Thankachan was caused by the injuries inflicted on his chest and abdomen. PW18 prepared Ext.P2 scene mahazar at about 4 pm. Based on the information gathered, finding that the first accused left to Kannur, his native place, PW18 instructed PW7 to proceed to Kannur and arrest the first accused. PW18, also instructed the C.I of Alancode to apprehend the first accused. By the time PW17 reached Kannur, first accused was apprehended by Alancode C.I. PW17 went there and obtained custody of the first accused and produced before PW18 on 30.6.2004. First accused arrested him and questioned him under Ext.P13 mahazar. Mos.5 and 6, the dresses worn by the first accused at the time of the incident were seized. On the information furnished by the first accused, PW18 recovered Mo4 torch, Mo1 chopper and the bicycle under Ext.P9 recovery mahazar, in the presence of Pws 10 and 11 from the house of the first accused on 1.7.2004 at 10.30 am. PW18 arrested accused 2 and 3 and also seized Mos. 7 to 10 dresses. On the information furnished Mo2 knife and Mo3 spanner were recovered by PW18. The Mos were forwarded for chemical examination and obtained Ext.P29 report.

(2.) After completing the investigation, PW20 the successor Circle Inspector laid the charge before Judicial First Class Magistrate, Kothamangalam, who committed the case to Sessions Court, Ernakulam. Learned Additional Sessions Judge to whom the case was made over for trial framed charge for the offences under Section 120B, 449 and 302 read with 34 of Indian Penal Code. All the accused pleaded not guilty. Prosecution examined 20 witnesses, marked 29 exhibits and identified 17 material objects.

(3.) After closing the prosecution evidence, when accused were questioned under Section 313 of Code of Criminal Procedure, they denied the incriminating evidence and contended that they were not involved in the incident at all. Learned Sessions Judge called upon the accused to enter on their defence and adduce evidence. Accused examined DW1 at that stage.