V C CHERIYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The Judgment by the court was delivered by Balakrishna Menon, J. - This appeal is by the accused 1 to 3 in Sessions case No. 1 of 1980 on the file of the Court of Session, Kottayam Division, against their conviction and sentence under S.302, IPC to undergo imprisonment for life. There were seven accused in the case. Accused 4 to 7 were acquitted by the lower court on the finding that the offences charged against them are not established by the evidence in the case.

(2.) All the seven accused persons were charged under S.143, 147, 148, 149, 302 and 324 of the IPC accused 1 to 3 were also acquitted of the offence under S.143, S.147, S.148, S.149 and 324 IPC. Their conviction and sentence were only under S.302, IPC.

(3.) The prosecution case is that the accused committed the offences charged against them at 2.45 p. m. on 4th September 1979 at the junction of the Eanthayar-Poonjar Road and the Eanthumthadam-Idamala Road newly constructed by the people of the locality within the area of jurisdiction of the Erattupetta Police Station. The new road is laid across the land belonging to the C. S. I. Church marked as No. 6 in Ext. P-19 plan of the scene of occurrence prepared by the Village Officer, P. W. 12. The place of occurrence is marked as No. 1. No. 7 is a bungalow belonging to the Church. No. 8 marked in the plan is a shed housing the machinery for manufacturing rubber sheets. This shed also belongs to the Church. No. 9 in the plan is a U. P. School belonging to the Church. No. 11 is a shop-building belonging also to the Church. It is clear from the plan Ext. P-19 that the new road is laid across the land in the ownership and possession of the C. S. I. Church and it reaches the Eanthayar-Poonjar Road which is said to be a public road in the locality. The first accused is the Pastor of the C. S. I. Church. Accused 2 to 4 are the children of the fifth accused. The fourth accused is the trustee of the Church. The new road was laid on 12th July 1979 across the land belonging to the Church by PWs 1 to 3, 5, 6 and several others including the deceased Joseph, Thomas and Reghu. The road was laid without the permission of the Church and its office bearers. Some of the yielding trees in the land were also destroyed in the process of laying the road. The first accused in his capacity as the Pastor of the Church had initiated criminal proceedings against the persons responsible for the construction of the road. On the strength of his complaint, the Erattupetta Police had registered a case on 14th July 1979 and a charge sheet Ext. D-4 was laid against seven persons for offences under S.143, 149, 427 and 447 of the IPC before the Judicial 1st Class Magistrate's Court, Palai on 10th July 1979. The formal inauguration of the road was fixed to be held on 4th September 1979 at a time when the criminal case was pending against those who were responsible for laying the road across the property of the Church without its consent. Ext. P-2 dated 1st September 1979 is a bit-notice alleged to have been distributed in the locality informing the public that the road will be formally inaugurated on 4th September 1979. PWs 1 to 3, 5 and 6 and several other persons including Joseph, Thomas and Reghu had assembled at the site of the road junction at about 2.45 p.m. on 4th September 1979. It was then noticed that stumps of areca trees and stories were placed at the road-junction to prevent access to the new road from the Eanthayar-Poonjar Road. A loudspeaker in a jeep announced that the road is being inaugurated. P.W.1 removed the areca stumps and the others assembled stated removing the stones placed across the new road at the road-junction. While the obstruction was being removed the accused persons attacked P. Ws. 1 to 3, 5 and 6 and also Joseph, Thomas and Reghu. The first accused stabbed Joseph on the left side of the chest with M. O.1 knife the second accused stabbed Thomas at his chest with M, O.2 knife and the third accused stabbed Reghu at his chest with M. O.3 knife. The fourth accused stabbed P. W. 2 with M. O.4 knife. The fifth accused threw stones at the head of one George (not examined in this case) and the sixth accused threw stones at the left hand of P. W. 5. The seventh accused threw stones at Joseph, Thomas and Reghu. The injured were taken in two jeeps to the Medical College Hospital, Kottayam. P. W. 8 the Tutor in Forensic Medicine on examination found Joseph, Thomas and Reghu dead, and he gave intimation of death of these persons to the Police Station. Exts. P-4 to P-6 are the intimation slips despatched by P. W. 8. P. W. 9 the Assistant Professor of Surgery, Medical College Hospital, examined PWs 2, 3, 6 and George who were injured in the incident. He issued Exts. P-7, P-8, P-9 and P-10 wound certificates relating to the injuries found on PWs 2, 3 George and P.W. 6. All these persons were admitted as inpatients in the hospital. P.W. 13 the Sub Inspector of Police, Erattupetta Police Station on information about the incident proceeded to the Medical College Hospital. As the injured were not in a position to speak he recorded Ext. P-1 first information statement of P.W. 1 who was also there in the hospital. The accused had also sustained injuries in the incident. They were admitted in the Taluk Headquarters Hospital at Palai. P.W. 13 went to that hospital and recorded the statement of the first accused produced in the case as Ext. P-21. He registered Crime No. 164 of 1979 on the strength of Ext. P-1 statement of P.W.1. He also registered Crime No. 165 of 1979 on the basis of Ext. P-21 statement of the first accused. Exts. P-20 and P-22 are the first information reports in the respective cases. The investigation was conducted by P.W. 15 the Circle Inspector of Police Crime Detachment, Kottayam. He held inquest on the dead bodies of the deceased Thomas, Joseph and Reghu, on 5th September 1979. Exts. P-26, P-27 and P-28 are the respective inquest reports prepared by P.W. 15. P.W. 14 Tutor in Forensic Medicine, Medical College, Kottayam conducted autopsy and issued Exts. P-23 to P-25 post mortem certificates relating to Joseph, Thomas, and Reghu. The post mortem certificate show the antemortem injuries found on the dead bodies of deceased. P.W. 15 prepared Ext. P-29 scene mahazar and recovered M.O. 4 Knife from the place of occurrence. He arrested accused 1, 2, 4 and 5 on 17th September 1979. Accused 6 and 7 were arrested the next day. The third accused was arrested on 26th September 1979. The prosecution alleges that he produced the weapons M.Os. 1 to 3 taken into custody by P.W. 15 under Ext. P-34 mahazar. The investigation of Crime No. 165/ 1979 was also conducted by P.W. 15. He filed final reports charge sheeting the accused in both the cases.