MANOJ @ BABU AND ORS. Vs. STATE OF KERALA

JUDGEMENT

(1.) Seven accused were charge -sheeted for offences punishable under Ss. 341, 398 and 302 read with Sec. 34 of the Indian Penal Code. A -5 and A -6 were absconding and their cases were split up. Case of A -3 was also split up as he was not found originally and that was separately tried in S.C. No. 41 of 2004. A -1, A -2, A -4 and A -7 faced trial in S.C. No. 221 of 2002. The Court charge is as follows:

(2.) The prosecution case is that at about 7.30 p.m. on 7 -6 -2000, all the accused, in furtherance of their common intention to commit dacoity, came in a Maruthi van bearing Registration No. T.N. 23D/9450, that they restrained the deceased Ganapathi and his son (P.W. 1) who were proceeding to their house after closing their jewellery shop, in their scooter bearing Registration No. KL -10E 28, that the accused Nos. 1 and 2 stabbed Ganapathi with knife on his chest, back and neck and inflicted fatal injuries at Chettipadi, that he succumbed to his injuries on the way to Government Hospital, Thirurangadi and that accused Nos. 3 to 7 acted in conjoining, in committing dacoity along with accused Nos.1 and 2. We are describing the array of witnesses as mentioned in S.C. No. 221 of 2002 (unless otherwise stated) for the purpose of convenience.

(3.) P.W. 1, son of the deceased Ganapathi, gave Ext. P -1 F.I. Statement and Ext. P -12 is the F.I.R. In Ext. P -1 F.I. Statement, which was given without much delay, he stated that on 7 -6 -2000 at about 7 p.m. as usual he and his father, deceased Ganapathi, were proceeding to their house, after closing their jewellery shop at Chettipadi, in their Scooter bearing Registration No. KL -10E 28. He was having about 1 1/2 kgs. of gold ornaments and he was seated as the pillion rider. When they passed Chettipadi railway gate, he saw a white Maruthi van following them. Several times he looked back and noticed the Maruthi van following them. When they reached very near to their house, he again looked back and he saw that the sliding door on the left hand side of the Maruthi van was kept opened and he noticed that two persons were sitting and a person who was sitting on the left side had a knife with him. Apprehending danger, he asked his father to speed up the vehicle. But, when they came near Jameela Manzil, the Maruthi van overtook and blocked the scooter so that they cannot proceed further. The scooter capsized and both of them fell on the ground. Immediately, the person with the knife and the other person jumped out of the van. P.W. 1 and his father cried aloud and P.W. 1 ran towards the nearby house of Ravi. The neighbours including Sasi and Babu ran towards the place of incident Sasi took Ganapathi in an autorickshaw to Chettipadi hospital and thereafter to the Government Hospital, Thirurangadi. By the time P.W. 1 reached the hospital, his father died. He stated that his father was killed by the joint action of the driver and two persons mentioned earlier and body of the father was kept in the mortuary of the Government Hospital. This statement was given at 11 p.m. on 7 -6 -2000 itself. His deposition before the Court below was consistent with the F.I. Statement. Even though he was cross -examined by several advocates appearing for different accused, evidence of P.W. 1 was not shattered. Further, even in the deposition he stated that he saw only one person having knife (later identified as A -1). He did not implicate other accused except the driver (A -4), A -1 and A -2. He identified A -4 as the driver in the Court. He identified A -1 and A -2 in the test identification parade conducted by the Judicial First Class Magistrate (P.W. 11). A -4 was identified in the test identification parade conducted by P.W. 12 (J.F.C.M.). The trial judge who saw the demeanour of witnesses also believed the evidence of P.W. 1. After going through the evidence, we fully believe P.W. 1. If he had any intention to give further evidence, he could have stated that he had seen other persons carrying weapons etc., but, he stated that he has not seen Ors. (that does not mean that there were no Ors. in the van). He also stated that after A -1 and A -2 jumped out from the van, when the scooter fell down, he rushed with the gold. Earlier itself he felt that the Maruthi van was following them and he was under the apprehension of danger. Then they were cornered by the Maruthi van overtaking them, the door was opened and A -1 and A -2 jumped out of the van. Even though there was no time, he could identify the persons and those identifications were fortified in the test identification parade. He identified them in the Court also which is a substantive evidence.