SIDDIQUE Vs. STATE OF KERALA

JUDGEMENT

(1.) Father and son were charge-sheeted for the offences punishable under Sections 302 and 324 of the Indian Penal Code read with Section 34 IPC for murdering one Kunhimuhammed and for inflicting injuries on PW-1. PWs-1. to 3 are examined as occurrence witnesses. According to the prosecution, accused No. 1 had cut a chal across the Karuvambalam -- Koranganad Panchayat road and deceased Kunhimuhammed and PW-1 were trying to fill up the chal at about 6-00 p.m. on 5-2-1998. At that time, in furtherance of the common intention, Al and A2 pushed Kunhimuhammed and he fell down on his back and Al stabbed on his chest with a dagger which was later withdrawn and Kunhimuhammed sustained injury on his chest and he succumbed to the injury on 9-2-1998 at Moulana Hospital, Perinthal-manna. Accused No. 2 grabbed the dagger from Al and attempted to commit murder of Muhammedkutty (PW-1) by stabbing with the same dagger and he had sustained injury on his left wrist as he warded off the stab. Ext. P1 is the FI statement given by PW-1. Even though the incident occurred at 6-00 p.m. on 5-2-1998, Ext. PI FI statement was given only on 6-2-1998 at 9-00 a.m. from Moulana Hospital and accordingly FIR was recorded and registered by PW-9. It is true that there is 15 hours' delay in lodging FIR. In Thulia Kali v. State of TN it was observed as follows :

(2.) According to PW-1 in the FI statement, he stays in Korariganad and in the Panchayat road in front of the house of the accused, a chal was cut by the accused and that was causing nuisance to persons who are using the road. Even though complaints were raised several times, Al did not accede to the same. Therefore, on 5-2-1998 evening he, along with deceased and CWs-4 to 6, went there for filling up the chal. While they were filling up the chal by using a Spade, Al and A2 came and asked that in whose permission they are filling up the chal. They replied that they are filling up the chal because of the inconvenience caused to the public and Al pushed Kunhimuhammed and Kunhimuhammed fell down. Then A1 took the dagger and inflicted chest injury on the deceased. He also stated that A2 took the dagger from the father and tried to kill him. Then he cried aloud and Al and A2 left the place. PW-1 when examined in Court made many improvements from his version given in Ext. P1. Contradictions in the statement given before the police and in the deposition before the Court were marked as Exts. Dl and D2. While giving oral evidence, he deposed that he and deceased alone came at 6 O'clock for filling up the chal. Then, Al came and while they were talking, PWs-2 and 3 arrived at the scene. Later, from Korangad side Kuttippara Syed, Makkar, Musthafa etc. came. All the above persons including the deceased are coming from Korangampara two Kms. away from the place of incident. He also deposed that while they were filling up the chal, Al and A2 pushed the deceased and when he fell down. Al stabbed the deceased by MO1 knife. The knife was withdrawn by Al and A2 took the same knife and tried to stab PW-1. He warded off the stab and his wrist was injured and the people who came from Korangode took him to the hospital. Kunhimuhammed died after an operation on the fourth day. He was very specific in his statement that neither he nor the deceased did attack anybody including the accused. During cross-examination, he deposed that house of the accused is just on the side of the place of incident. Accused constructed the house in a paddy field after obtaining permission from the Revenue Divisional Officer. Near his house, there is a canal and this chal is used for the flow of water from the canal and other water coming from the east. He deposed as follows :

(3.) Evidence of PW-2 as well as PW-3 is almost on the same lines. All of them have deposed that they are not aware of the injuries on Al and A2. PW-4 came to the place after the incident and he accompanied the injured to the hospital. PW-5 is an attestor to Ext. P3 inquest report, PW-6 is an attestor to Ext. P4 scene mahazar, PW-7 is an attestor to recovery mahazar of MO1 and PW-8 is the Village Assistant. The Village Assistant who prepared the scene mahazar has deposed that the road belonged to panchayat and the Panchayat has made the chal and not the accused. Earlier, it was a ridge of a paddy field and when Panchayat road was made it was made as a chal.