GEORGE ALIAS KUNJU Vs. STATE

JUDGEMENT

(1.) THE first accused in S. C. 35 of 2002 on the file of V Additional Sessions Judge, Ernakulam has filed this appeal challenging the conviction and sentence imposed on him in the above said Sessions Case.

(2.) THE appellant along with one Jose were chargesheeted by the Circle Inspector of Police, Muvattupuzha alleging that they committed the offences punishable under Sections 109, 120-B, 449, 302, 380 and 201 read with section 34 of Indian Penal Code. The prosecution case was that deceased Parukutty, aged about 60 years, was residing alone in her house. She was a spinster. Her relationship with her blood relations and also with neighbours were not cordial. P. W. 2, the niece of the deceased, was residing with her till six months prior to the date of incident. The only person on whom deceased Parukutty reposed trust and took into confidence was the appellant, the first accused in the case. He was the coconut climber of the deceased and had access to her house. He was a frequenter to that house also. During the beginning of the year 1999, a dispute arose regarding a pathway used by the deceased to reach her house from Muvattupuzha-Thodupuzha Road. That pathway was lying through the property of one Navullil Mathai and Aleykutty, who are the brother and sister of the second accused. P. W. 7, the Secretary of Local Committee of Communist Party of India (Marxist) ('cpi (M)" for short) intervened in the matter. The matter was settled. P. W. 6 and 2nd accused agreed to give a pathway having three feet width. But, they did not honour their commitment. So, Parukutty was forced to file Exhibit P8 suit against P. W. 6 and his sister Aleykutty. Since Parukutty filed the suit, the 2nd accused became inimical towards her. He openly declared that Parukitty will not be able to walk through the property of his brother Mathai. He took a decision to do away with Parukutty. Parukutty was in the habit of keeping dogs in her house and hence it was not possible for the 2nd accused to enter into the house of Parukutty and kill her. So, he conspired with the 1st accused and brainwashed him to commit the murder of Parukutty. Finally the 2nd accused succeeded in abetting the appellant to kill Parukutty. At about 1. 30 p. m. on 13. 10. 1999 the first accused criminally trespassed into the Pattuplayil House, wherein deceased Parukutty was residing. Parukutty was lying in her bed room. The appellant initially strangulated Parukutty using M. O. 4 rope and thereafter inflicted cut injuries on her neck using M. O. 6 Sickle. Parukutty died on the spot. Thereafter the appellant committed theft of M. O. 1 Rechargeable Torch and M. O. 2 Tape Recorder and put the same in a big shopper belonging to Parukutty and went to his house. It was also alleged that the accused killed a domestic dog of Parukutty. After reaching home, the appellant set fire to the big shopper to cause disappearance of evidence. According to the prosecution, the appellant and 2nd accused committed the offences punishable under Sections 109, 120-B, 449, 302, 380 and 201 read with Section 34 of Indian Penal Code.

(3.) THOUGH Parukutty was murdered on the afternoon of 13. 10. 1999, her relatives and neighbours did not notice this fact for the next four days. On 18. 10. 1999, some of the neighbours felt a foul smell emanating from the house of Parukutty. One Pallamatathil Kunju along with 1 or 2 neighbours went there and saw the dead body, which was in an advanced stage of decomposition. They informed this fact to P. W. 1 Rajan, nephew of Parukutty. P. W. 1 went to the house of Parukutty and saw the dead body. He went to the Muvattupuzha Police Station and gave Exhibit P1 F. I. Statement, which was recorded by P. W. 17, Head Constable. P. W. 17 registered Exhibit P16 F. I. R. under the caption "unnatural death". Initially it was believed that Parukutty died because of heart ailment. P. W. 18, the Sub Inspector of Police attached to Muvattupuzha Police Station came to the house of Parukutty, conducted inquest on the dead body and prepared Exhibit P17 inquest report in the presence of P. W. 3 and others. Thereafter P. W. 16 conducted autopsy on the dead body of Parukutty and issued Exhibit P15 post mortem certificate. P. W. 18 questioned the doctor. At that time, it was revealed that Parukutty died not because of any ailment, but it was a case of homicide. P. W. 18 filed Exhibit P18 report to alter the Section from "unnatural death" to Section 302 I. P. C. The F. I. R. and the inquest report which were originally forwarded to the Sub Divisional Magistrate, Muvattupuzha were transmitted to the Judicial First Class Magistrate. Thereafter the investigation was taken over by P. W. 19, the Circle Inspector of Police. He visited the place and prepared Exhibit P5 scene mahazar. He questioned the witnesses and arrested A1 and A2 on 25. 10. 1999. According to the prosecution, P. W. 19, questioned A1 and A2 and at that time A1 confessed that M. O. 1 Rechargeable Torch, M. O. 2 B. P. L. Tape Recorder, M. O. 20 Longi and M. O. 21 Shirt and M. O. 17 Bottle of Furadan were concealed by him in his house itself. Those articles were seized under Exhibit P6 mahazar, to which P. W. 9 was an attestor. P. W. 19 also seized M. O. 3 Sickle and M. O. 4 coir in pursuance of the information furnished by the 1st accused. After completing the investigation, he filed the final report also. The learned Magistrate after complying with the formalities committed the case to the Court of Session, which was subsequently made over to the V Additional Sessions Court for trial and disposal.