KOCHU BIJU Vs. STATE OF KERALA

JUDGEMENT

(1.) The deleterious effects of moral policing; life was taken, of one who indulged in it, is the case projected by the prosecution. The deceased and his friends, in their late teens used to play cricket in the vacant plot near which a lady of allegedly loose morals lived. There were frequent visitors to the said house which was objected to by the deceased and his friends. On the first instance in this case, the prosecution alleged, on 6/3/2004 the 1st accused went to that house with a lady, and on his way back, those who were playing in the ground waylaid him. There was a wordy altercation and push and pull after which A1 threatened the persons who waylaid and asked them to verify his antecedents in Neendakara, again as an ominous warning. The friends chased A1 and the deceased thrashed him up on the road near a shop. A1 returned with a gang on 13/3/2004 and the deceased and his friends ran for their lives. Again A1 and A2 with some others confronted the deceased and PW23 and roughed them up. The deceased asked PW23 to summon their friends, upon which, PW23 ran away, so to do. By the time PW1 and his friends came to the spot, the deceased had moved further and was lying wounded in front of one Prakasan's house. PWs.1, 21, 23 and 24 took the injured in an autorickshaw, who was declared dead in the Distrct Hospital. The deceased died of a penetrating knife injury.

(2.) There were 11 accused arrayed before the trial Court, but A3 to A11 were acquitted. A1 and A2 were found guilty of the offences under Ss.143 147 148 342 and 302 r/w S.149 of IPC. A1 and A2 were also acquitted under S.323 and S.120B of IPC and S.235(1) of Cr.PC. The convicted accused were sentenced with rigorous imprisonment (RI) for three months each under S.143, RI for six months each under Ss.148 and 342 and imprisonment for life with a fine of Rs.25000.00 each with default sentence. Set off was allowed and the sentence was directed to run concurrently.

(3.) Sri.Siju Kamalasanan, learned Counsel, appeared for A1 and A2 and submitted that there were no eye witnesses and the sole witness to prove the last seen theory was PW23, whose testimony is unbelievable. The earlier incident on 6/3/2004 was spoken of by PWs.1, 24 and 25 and that of 13/3/2004 by more witnesses but different versions. The trial Court convicted the accused based on three circumstances; (i) last seen theory, (ii) dying declaration and (iii) recovery of knife. PW23's identification of A1 and A2 for the purpose of last seen theory is on a sticky wicket. He had seen A1 only on 13/3/2004; that too at a distance and in a group without identifying him. On 20/3/2004 the alleged incident occurred at night and there is no proof of light at the scene of occurrence. As per the scene mahazar Ext. P10 the scene where the deceased was found injured was described by PW23 and not the scene of occurrence; which puts the eye-witness testimony of the assault on the deceased in peril. A street light situated 90 meters away from the spot where the accused was taken to the hospital was recorded, but there is no evidence to establish that it was functional. PW23 does not identify the scene of occurrence and according to the other witnesses the spot where the injured was found is 100 metres away from the alleged scene of occurrence; further distant from the street light. PW23 was away from the scene of occurrence only for five minutes and it is very unlikely that the penetrating injuries found on the body could have been inflicted and the accused absconded, within the short interval.