SIVASANKARAN MOOSAD Vs. STATE OF KERALA

JUDGEMENT

(1.) The Referred Trial relates to the sentence of death passed against accused 1 to 3 in Sessions Case No. 7 of 1957 on the file of the Court of Session, Kozhikode Division. The Criminal Appeal (56 of 1957) is by those accused against the convictions and the sentences passed against them by the learned Sessions Judge, who tried the case. The three accused persons were tried before the learned Sessions Judge, Kozhikode Division, for causing the death of one Parameswaran Moosad, an elder brother of accused 1 and 2. All the three accused stood charged under S.302 read with S.34, Penal Code. There was a further charge under S.326, Penal Code, against accused 3 for causing grievous hurt with a deadly weapon to one Gangadharan (PW 1), at the same time and place and during the course of the same transaction which resulted in the death of Parameswaran Moosad. While convicting all the three accused persons of murder under S.302 read with S.34, Penal Code and imposing the extreme penalty of the law against them, a sentence of rigorous imprisonment for one year was also passed against accused 3, We heard the appeal and the referred trial at the vacation sitting of the Court on May 22, 1957 and now dispose of the case by this judgment.

(2.) The prosecution case against these accused persons was that in furtherance of the common intention of all of them, they committed the murder of the deceased Parameswaran Moosad, by accused 1 and 2 cutting him with kukris and accused 3 cutting him with a sword at about 5-15 p. m. on December, 17, 1956 on the Kozhikode Balusseri Road in Vengad Amsom in Kozhikode Taluk. Parameswaran Moosad sustained not less than 22 injuries at the hands of his assailants and as the result thereof he died the same day at 10-30 p. m., after he was admitted at the Kozhikode Headquarters Hospital for treatment. The deceased was the proprietor of a cinema theatre called Sreekumar Talkies and it would appear that everyday, after 5 p. m., he used to go to the theatre. The theatre was nearly one mile to the north of his house and it was while he was on his way to the theatre as was his wont, accompanied by PW 1, that the occurrence took place. On their way, in front of a reading room known as Prathibha, PW 1 and the deceased saw the three accused persons standing on the road side. The accused also walked along with them northwards, the deceased was in front closely followed by accused 1 and 2 and behind them were PW 1 and accused 3. When they had gone near the tea shop of one Ummer (PW 4), accused 1, who was wearing a shirt took out from his waist a kukri and cut the deceased above his right elbow. On receipt of the cut the deceased turned to the right when accused 2 cut him below his right knee with a similar kukri taken from the place of its concealment, namely, the waist. Accused 2 was also wearing a shirt. While administering that cut accused 2 asked the deceased whether he had not eaten Rs. 5000 of Kakkodi Bridge. Immediately on receipt of these two injuries the deceased sat down, reclining against the adjacent compound wall on the side of the road : At that time PW 1 approached accused 1 and 2 with a view to catch one of them, but accused 3 then intervened and asked him to stop there. When the witness turned round accused 3 took out a club from his waist and beat him on the head. Accused 3 also had a shirt on them. Three more blows were administered to PW 1 by accused 3 and these were on his left ankle. All the while accused 1 and accused 2 were cutting the deceased with kukris. Remaining in the same sitting posture the deceased tried to ward off as best as he could the cuts. PW 1 sustained one or two minor injuries on the head, but those would seem to have been caused accidentally by the kukri in the hands of accused 2 coming into contact with the head when the witness wanted to catch accused 1. By this time some people had gathered around the place where the occurrence was going on, but accused 1 and 2 scared them off by shouting that nobody should go near. After PW 1, another eye-witness, PW 2 tried to approach the place where the deceased was being attacked, but accused 2 chased him away. PW 2 had therefore to keep himself away at some distance from the place of attack. After that one Kandankutty, who ran up to the place was chased away by accused 3. After running after him for some distance, accused 3 returned to the scene. There was then a sword in his right hand, but he still had the club with him at that time it was in the left hand. On his return accused 3 also joined accused 1 and 2 in inflicting cut wounds on the deceased. He gave 2 or 3 cuts with the sword. Accused 1 and 2 continued the attack on the deceased and accused 1 repeated what accused 2 had said earlier whether the deceased had not swallowed Rs. 5,000 of Kakkodi Bridge and further whether they should also not live. The right foot of the deceased got served from the leg by cuts inflicted by accused 1 and before leaving the scene he (accused 1) said, we dont mind being hanged. A light blue shirt which he was wearing had got bloodstained; he removed that and threw it at the scene. After that all three accused together left the place running, with their weapons still in their hands. When they had proceeded some distance southwards, PW 7 an employee of the Sreekumar Thalkies happened to proceed along the road northwards on a bicycle. He was going to the theatre. They ran after him, but he turned his bicycle back and escaped from being caught When they found that they cannot catch him, accused 3 threw his club at him. That did not hit him but fell in a compound of the eastern side. Besides P, W. 7, PW 6 has also spoken to this part of the case, that is, the pursuit of PW 7, PW 6 was having a shop a few furlongs south of Sreekumar Talkies.

(3.) After escaping from being caught by the accused, PW 7 went straight to the house of PW 8, the eldest brother of accused 1 and 2 and took him to the scene of the crime. However by the time they went there the deceased and PW 1 were removed to the hospital in a bus that came that way. The victims reached the hospital by about 7-30 p. m. and at that time PW 5, the Medical Officer in charge, was attending to some other urgent case. Information was, however, , immediately given to the police that the deceased was brought there severely wounded. PW 5 was able to attend to the injuries of Parameswaran Moosad only by 8 oclock and after preliminary attention was given at the casualty ward, he was removed to the operation theatre. By 9 oclock all the aid PW 5 could render was finished. Then PW 10, a Head Constable of Police who had gone to the hospital on receipt of the information about Parameswaran Moosads arrival in the hospital, recorded a statement (Ext. P. 2) from him about the occurrence. This statement formed the basis of the First Information Report in the case and it implicated accused 1 to 3 as having attacked him on his way to the theatre at about 5-15 p. m., accused 1 and 2 attacking him with kukris and accused 3 with a sword. The fact that PW 1 got injured during the course of the incident also finds a place in that statement. The injuries on PW 1 were also attended to at the hospital and he remained an inpatient for 11 days. Those who took the deceased and PW 1 to the hospital also carried with them in the bus the severed right leg of Parameswaran Moosad and the bloodstained shirt (M. O. II) which accused 1 had thrown at the place. As stated earlier Parameswaran Moosad died at 10-30 p. m. (17th December 1956) and when the police received intimation about it they altered the case registered under S.236, Penal Code, into one under S.302.