VIJAYAKUMAR Vs. SURESH KUMAR

JUDGEMENT

(1.) The appellants figured as accused Nos. 1 and

(2.) in S.C. No. 1980 of 2008 and they, along with one Sheela, were prosecuted for having committed offence punishable under Sec. 120 -B, 364, 368, 302 and 201 read with Sec. 34 of the IPC. The learned Additional Sessions Judge acquitted the 3rd accused of all charges and the appellants were found not guilty of the offence under section 120 B, 364, 368 r/w section 34 of the IPC. However, they were found guilty for the offence under Sec. 302, 201 read with Sec. 34 of the Penal Code and were sentenced to undergo imprisonment for life and also to pay a fine of L 50,000/ - each with a default clause of RI for five years each for the offence under Sec. 302 read with Sec. 34 of the IPC. They were also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/ - with a default clause of six months for the offence under Sec. 201 read with Sec. 34 of the IPC. The aforesaid conviction and sentence are under challenge in this appeal. 2. The prosecution case unfolded in the following manner: - On 25.6.2004, PW 2 - Vivin Varghese, the son of deceased P.J. Varghese approached the Sub Inspector of Police, Kattakkada and submitted Ext. P 3 complaint. In Ext. P3, it was stated that, his father P.J.Varghese had been running a tyre retreading business from two separate shops at Kattakkada and Vithura in the name and style as ''V.S. Tyres ''. He was residing with his wife Valsala and two sons at a place called Onnumpara. The 1st accused herein, who was arrayed as the 1st respondent in the complaint, was working as a driver in the office of the Assistant Commissioner of Police, Cantonment, Thiruvananthapuram. The 2nd respondent, who is the 2nd appellant herein, is an associate of the 1st accused and is an army personnel. The deceased Varghese was indebted to various persons and his list of creditors included the 1st accused. On 21.6.2004, the deceased was persuaded by the appellant No. 1 to believe that it would be in his best interests to assign the Vithura property standing in his name to the name of the 1st accused, ostensibly to shield the property from his numerous creditors. On 22.6.2004, accused Nos.1 and 2 came to the house of the deceased and went with the deceased Varghese. Later in the evening, the 2nd appellant came to the house of the deceased and convinced the family members that the deceased would return and there was nothing to fear. On 23.6.2004 at 8.00 am, the 1st appellant came to the house of the deceased and informed the family members that the deceased would return in two days. Two days prior to 22.6.2004, the appellant No.1 had insisted that the Kattakkada property should also be assigned in their favour. Further, a month prior to the above incident, a Mahindra jeep of 1989 make bearing registration No. KL -01 -H -6159 was taken away by appellant No. 1. It was stated in the complaint that he feared that his father was illegally detained in some secret hide out and requested the police to take immediate measures to get him released.

(3.) Independent of these happenings, on 24.6.2004, PW1 - Praveen Chand, who is the ward member of the VI ward of Vellanad panchayat was informed by locals that a dead body was found floating on the eastern side of the Koovakkudi bridge. He immediately rushed to the Aryanad police station and gave information based on which Ext.P36 was registered on 24.6.2004 by PW38, the Additional Sub Inspector of Police, under Sec. 174 of the Cr.P.C. The said report was forwarded to the Sub Divisional Magistrate.