VARKEY ALIAS KOCHU Vs. STATE OF KERALA

JUDGEMENT

(1.) This is an appeal filed by accused 1 and 2 in Sessions Case 23 of 1962 on the file of the Sessions Judge of Kottayam. The first accused has been convicted under S.302 I. P. C., for causing the death of Kesavan Nair, a police constable. He is also convicted of the offences under S.353, 224 and 324 I. P. C. The second accused is found guilty and convicted of the offence punishable under S.225 I. P. C.

(2.) The accused and three others were accused in C. C. 699/61 on the file of the Sub Magistrate of Punalur. The accused had appeared in court and were enlarged on bail. P. Ws. 1 and 10 had stood surety for them executing surety bonds. As the accused did not appear in court, notice was issued to the sureties to show cause why their bail bonds should not be cancelled. On receipt of the notice they appeared in court and filed an application Ext. P. 15 promising to assist the police to effect the arrest of the accused and have them produced in court and wanted two weeks time for the purpose. The Sub Magistrate granted the request and issued a warrant Ext. P. 2 for the arrest of the first accused in this case. As the warrant was to be executed outside the local limits of his jurisdiction, the warrant was forwarded to the Sub Divisional Magistrate of Ponkunnam. The Sub Divisional Magistrate endorsed the warrant for execution to the Sub Inspector of Police, Mundakayam. He, in turn, endorsed the warrant to P. W. 2 a police constable. On 2-3-62 P. W. 2 went to the shop of P. W. 1, one of the sureties. P. W. 10 the other surety was also sent for. They informed P. W. 2 that it would not be possible to have the accused arrested during day time and that if P. W. 2 could come after 8 p. m., they would be able to point out the accused. P. W. 2, therefore, returned to the police station and reported the matter to the Sub Inspector of police. He requested for additional aid and the Sub Inspector deputed two other police constables P. W. 4, Thomas and deceased Kesavan Nair to assist him. They went in a jeep to the shop of P. W. 1 and from there P. Ws. 2, 4 and deceased Kesavan Nair accompanied by the sureties P. Ws. 1 and 10 proceeded to the house of the first accused. P. Ws. 2 and 4 were in their uniform and deceased Kesavan Nair was in plain clothes. They reached the house of the first accused and P. W. 2 enquired of his mother whether her son the first accused was there. On being told that he was not there, they left the house and proceeding along the pathway sat on a rock by the side of the pathway in the rubber estate of Skaria awaiting the arrival of the first accused. At about 9 p. m., they saw people coining with light towards the north along the pathway. On seeing this they walked towards them and found that the party who were coming were the two accused and P.W. 13 Barber Kuttappan. The first accused had a lighted candle fixed in a coconut shell and P. W. 13 had a torch light. P. W. 13 has given evidence that when they saw the police party coming the second accused told the first accused that it was police who were coming and the first accused replied, 'let them come, we will see.' As soon as they neared the police party P. W. 13 ran away. P. W. 1 pointed out the first accused as the person against whom the warrant was issued. P. W. 2 then appraised the first accused that they were police constables, that there was a warrant for his apprehension issued by the Punalur Magistrate and caught hold of his hand in token of arrest. The first accused, thereupon pushed him and P. W. 2 fell into a pit by the side of the pathway. P.W. 1 then approached the first accused requesting him not to do anything and the first accused whipped out his dagger M. O. 1 and stabbed P. W. 1 three or four times on his hand and shoulder. Deceased Kesavan Nair then approached the first accused to catch him when the first accused turned towards him and stabbed him three or four times in quick succession on his abdomen, hand back, etc. Saying that he was stabbed Kesavan Nair held the first accused by his waist. P. W. 2 had by then got up from the pit and he lied the hands of the first accused with his muffler. The first accused cried 'Ayyo' and it is alleged the second accused who was there asked the police party who they were to arrest without the Sub Inspector. He took out his knife and aimed a stab at (P. W. 2. P. W. 4 the other police constable caught hold of the second accused and P. W. 2 with his lathi aimed a blow at the second accused asking him to put down the knife. The second accused wriggled out of the hold and ran away. :

(3.) The injuries on deceased Kesavan Nair were bandaged and they proceeded to the place where the jeep was stationed. The first accused was also with them. On the way they met P. W. 12 and then P. W. 17 and told them what had happened. They proceeded to the Mundakayam police station. When the jeep was stopped at the police station P. W. 4 took the first accused to the station. As the Sub Inspector was not there they returned to the jeep and took the injured Kesavan Nair to the hospital. The doctor was not there and P. W. 2 went and fetched the doctor. By that time the Sub Inspector of police also reached. He recorded a statement Ext. P. 1 from P. W. 1 at 10.15 p. m. P. W. 1 was admitted as an inpatient. He was examined by P. W. 7 and his wound certificate is Ext. P. 9. He was discharged on 5-3-62. After rendering first aid Kesavan Nair was removed to the District hospital, Kottayam for better treatment. P. W. 11 the Assistant Surgeon attached to the hospital admitted him as an inpatient at 12.40 a. m. A letter Ext. P. 4 was sent to the Sub Magistrate, Kottayam for recording the statement of Kesavan Nair. P.W. 3 the Sub Magistrate came to the hospital and recorded the statement Ext. P. 5. P. W. 11 the Medical Officer who was present has appended a certificate that the injured was in a position to understand the questions and give coherent answers. P. W. 14 the Chief Surgeon of the hospital assisted by P. W. 11 performed an abdominal operation. In spite of the best medical aid Kesavan Nair succumbed to his injuries the next day at 12.50 p. in. Information was given to the Kottayam East Police station and P. W. 8 the Circle Inspector reached the hospital and held the inquest. After the inquest P. W. 11 conducted the autopsy. After questioning all the witnesses and completing the investigation P. W. 19 the Circle Inspector of police laid the charge sheet against both the accused.