OUSEPH VARKEY 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 Section 302 I. P. C, for causing the death of Kesavan Nair, a police constable. He is also convicted of the offences under Sees, 353, 224 and 324 IPC The second accused is found guilty and convicted of the offence punishable Under Section 225 IPC

(2.) THE first 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. Pws. 1 and 10 had stood surety far 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 n application Ex. P-15 promising to assist the police to effect the arrest of the accused and have them produced iii court and wanted two weeks time for the purpose. The Sub-Magistrate granted the request and issued a warrant fit, P-2 for the arrest of the first accused in this case, his the warrant was to be executed outside the local limits of his jurisdiction, the warrant was forwarded to the Sub-Divisional Magistrate of Pohkunna. The Sub-Divisional Magistrate endorsed the warrant for' execution to the Sub-Inspector of police, Mundakayam. He an turn, endorsed the warrant to Pw. 2 a police constable On 2-3-62 Pw. 2 went to the shop of Pw. 1, one of the sureties. Pw. 10 the other surety was also sent for. They informed Pw. 2 that it would not be possible to have the accused arrested during day time and that If Pw. 2 could come after 8 p. m. they would be able to point out the accused. Pw. 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 Pw. 4, Thomas and deceased Kesavan Nair to assist him. They went in a jeep to the shop of Pw. 1 and from there Pws. 2, 4 and deceased Kesavan Nair accompanied by the sureties Pws. 1 and 10 proceeded to the house of the first accused. Pws. 2 and 4 were in their uniform and deceased Kesavan Nair was in plain clothes. They reached the house of the first accused and Pw. 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 coming with light towards the north along the pathway. On seeing this they walked towards them and found the party who were coming were the two accuse and Pw. 13 Barber Kuttappan. The first accused had a lighted candle fixed In a coconut shell and Pw. 13 had a torch light. Pw. 13 has given evidence that when they saw the police party coming the second accused told the first accused that it wet police who were coming and the first accused replied, 'let them come, we will see1. As soon as they neared the police party Pw. 13 ran away, Pw. 1 pointed out the first accused as the person against whom the warrant was issued. Pw. 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 pirshed him and Pw. 2 fell into a pit by the side of the pathway. Pw. 1 then approached the first accused requesting him not to do anything and the first accused whipped out his dagger M. 0. 1 and stabbed Pw. 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. Pw. 2 had by then got up from the pit and he tied the hands of the first accused with his muffler. The first accused cried 'ayyo1 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 aimd a stab at Pw. 2. Pw. 4 the other police constable caught hold of the second accused and Pw. 2 with his lathi aimed a blow at the second accused asking hint 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 Pw. 12 and then Pw. 17 and told them what had happened. They proceeded to the Mundakayam police station. When the jeep was stopped at the police station Pw. 4 took the first acctfsed to the station. At 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 Pw. 2 went and fetched the doctor. By that time the Sub-Inspector of police also reached. He recorded a statement Ex. P-1 from Pw-1 at 10-15 p. m. Pw. 1 was admitted as an in-patient. He was examined by Pw. 7 and his wound certificate is Ex. 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. Pw. 11 the Assistant Surgeon attached to the hospital admitted him as an in-patient at 1240 a. m. A letter Ext. P-4 was sent to the Sub-Magistrate-, Kottayam for recording the statement of Kesavan Nair. Pw. 3 the1 Sub-Magistrate came to the hospital and recorded the statement Ext. P-5. Pw. 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. Pw. 14 the Chief Surgeon of the hcspital assisted by Pw. 11 per formed an abdominal operation. In spite of the best medical aid Kesavan Nair succumbed to his injuries the next day at 12-50 p. m. Information was given to the Kottayam East Police station and Pw. 8 the Circle Inspector reached the hospital and held the inquest. After the inquest Pw. 11 conducted the' autopsy. After qua- is Vabkey v. State of Kebala (Govinda Menon J.) 1964 (1) Ori. L. 3. tioning all the witnesses and completing the investigation Pw. 19 the Circle Inspector of police laid the charge sheet against both the accused.