BENNY Vs. STATE OF KERALA

JUDGEMENT

(1.) The family of the deceased and PW 1, who is his younger brother, were celebrating the first marriage anniversary of PW 1 on 27.10.2009. The accused is none other than the brother -in -law of the deceased. On 27.10.2009 as the celebrations were going on in the house, in which the deceased and accused were participants, when the accused was about to leave the house after the celebrations, it so happened that he picked up quarrel with PW 1 regarding the property which belonged to the family. Hearing the commotion, the deceased came out of his room and asked both of them to leave the place. This was not to the liking of the accused, who threatened the deceased with dire consequences. It was also the allegation that during the day time on the same day, when the children of the accused came to the house of the deceased, wife of the deceased ill -treated them. Benny, the accused, left the house after participating in the marriage anniversary celebration, and PW 1 and the deceased went to sleep. At about 11.30 p.m. PW 1 heard the cries of his sister -in -law and when he opened the door, he found the deceased holding on to his stomach and when he saw PW 1, he stated that the accused had stabbed him. PW 1 at once tied the wound with a towel. It was made known to him that when the accused came and knocked the door, PW 3 opened the door and asked the accused to return to his house and come on the next day. But the accused forced open the door and entered the room where the deceased was sleeping and stabbed him. PW 1, seeing that the deceased was injured, went to his neighbour and with the help of other neighbours removed the deceased in an autorickshaw to the Government Hospital at Ernakulam. On examination by the doctor, he was pronounced dead. PW 1, in the early hours of 28.10.2009, laid Ext. P1 First Information Statement before Njarakkal Police Station. PW 13 recorded the same and registered crime as per Ext. P1(a) FIR. Investigation was taken over by PW 14. He went to General Hospital mortuary and conducted inquest over the body of the deceased. Ext. P6 is the inquest report. PW 14 had seized the clothes found on the body of the deceased at the time of conducting inquest. He then had the body sent for autopsy. PW 11, the Forensic Surgeon conducted autopsy and furnished Ext. P14 report. In the meanwhile, PW 14 proceeded to the place of incident and prepared Ext. P4 scene mahazar. He had the assistance of PW 12, the Scientific Assistant who collected certain materials from the place of incident which was handed over to PW 13 by PW 14 as per Ext. P8 mahazar. PW 14 then had all the articles collected during investigation sent for chemical examination as per Ext. P15. On 28.10.2009 at about 2.30 p.m. he had the accused arrested from Njarakkal. Based on his confession statement marked as Ext. P5(a), the weapon of offence was recovered and that is M.O. VII. He also seized the clothes which were said to have been worn by the accused at the relevant time as per Ext. P7 mahazar. He recorded the statements of witnesses, obtained Ext. P20 chemical analysis report, completed investigation and laid charge before court.

(2.) The court, before which the final report was laid, took cognizance of the offences and finding that the offences are exclusively triable by a court of sessions, committed the case to Sessions Court, Ernakulam under Sec. 209 Cr.P.C. after following the necessary procedures. The said court made over the case to II Additional District and Sessions Court, Ernakulam for trial and disposal. The latter court, on receipt of records and on appearance of accused, framed charge for the offences punishable under Ss. 449 and 302 of I.P.C. On reading out the charge, the accused pleaded not guilty and claimed to be tried.

(3.) That caused the prosecution to examine PWs 1 to 14 and marked Exts. P1 to P21. M.Os. I to VII were got identified and marked. The defence from his side had Ext. D1 marked which is a portion of the 161 statement of one of the witnesses examined by the prosecution. After the close of the prosecution evidence, the accused was questioned under Sec. 313 Cr.P.C. regarding the incriminating circumstances brought out in evidence through the witnesses. The accused denied all the incriminating circumstances and maintained that he is innocent. Having found that the accused could not be acquitted under Sec. 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence.