WILFER RAJ Vs. STATE OF KERALALABIC

JUDGEMENT

(1.) Crl.Appeal No. 1445 of 2012 is a victim appeal preferred by the brother of the deceased Russel Raj and Crl.Appeal No. 1447 of 2012 is preferred by State of Kerala aggrieved by the order of acquittal passed by the learned Additional Sessions Judge-I, Thiruvananthapuram in SC No. 321/2005. As these appeals arise out of the same incident, both of them are heard and decided together. Learned Counsel Sri.S.Rajeev appeared for the victim and Sri.S.U.Nazar, the learned Public Prosecutor appeared for the State of Kerala and learned Senior Counsel Sri.B.Raman Pillai appeared for both the accused. We heard the detailed arguments made by all the respective Counsels.

(2.) The prosecution alleged that the accused committed murder of their own brother-in-law, Russel Raj and voluntarily caused grievous hurt by means of dangerous weapons to the brother of the deceased, PW2 Wilfer Raj. The accused Vijayan and Soman were charged for offences punishable under Sections 302, 323, 324 and 326 read with Section 34 of the Indian Penal Code (for short 'IPC'). Court below, after trial, found that prosecution was unable to prove the case against the accused and acquitted them.

(3.) The prosecution case is detailed as under: The appellant Wilfer Raj (PW2) is the brother of the deceased. The deceased Russel Raj is the brother-in-law of the accused. On 18.09.03 at around 08.00 p. m., the father of PW2 Mr. Devadas, aged 75 years, developed acute illness. To take him to hospital, PW2 went to a taxi stand situated at Uchakkada to avail a taxi and on the way, at Viraly Junction, he met his friend Praveen (PW3) and he accompanied him. At the taxi stand, there was only one taxi available which belonged to PW4 Ravikrishnan. PW4 told them that the car was having some starting problem and expressed his reluctance to go. Since there was no other taxi available at that time and considering the urgency of the situation, PW2 and PW3 insisted PW4 to come with them. Accordingly, PW4 agreed to take the taxi and asked PW2 and PW3 to proceed to their house and that he would follow them after push starting the car. Accordingly, PW2 and PW3 proceeded to their house in the bike and PW4 followed them in his taxi car. When they reached the place called Kuttanthurannavila, they saw a lorry loading coconut husk on the side of the road situated on the western side of the house of the first accused. They reached the house of PW2. PW2, PW3 and Russel Raj took PW2's father into the car. The deceased Russel Raj also entered into the car and the car proceeded to the hospital. PW2 and PW3 followed the car in the bike. When the car reached in front of the house of the first accused, the lorry mentioned above was obstructing the passage. PW2 and PW3 who were following the car also reached there. Initially, PW4 the driver of the car requested the lorry driver to make way. The lorry driver was moving the lorry to and fro. Thereafter, PW2 asked the driver to move the lorry to enable the car to proceed to the hospital. At that time, accused no. 1 who was standing there rushed to the front of the lorry uttering " who are you to ask the lorry to be moved?" and pulled down the bike in which PW2 and PW3 were traveling. As a result of it, both of them fell down and as they stood up from the ground, the first accused gave a blow on the chest and dorsal side of PW2 with his fist. Thereafter, the first accused pushed PW2 up to a lane situated 30 feet away towards north from the said place and PW2 fell down. When PW2 got up, the first accused took MO1 knife from the tucking of his waist and stabbed PW2 on the left side of the head and right side of the shoulder. At that time, the second accused rushed to the spot from the compound of the house of the first accused with MO2, the handle of a spade and gave a blow aiming at the head of PW2. PW2 prevented the blow with his right hand. He suffered a fracture on his hand. Seeing the incident from the car, Russel Raj got out of the car and rushed towards PW2 and the first accused uttering, "please don't do any harm to my brother." When Russel Raj reached near PW2 and the first accused, the first accused stabbed Russel Raj using MO1, on right side of his chest just above the nipple, uttering "Will kill and bury all of you". When Russel Raj attempted to run away, the first accused again with the same MO1 knife, stabbed on the dorsal side of Russel Raj and inflicted serious injuries on him. On sustaining injuries, the deceased screamed and ran towards the car. Both the accused followed the deceased with MO1 and MO2. Russel Raj fell down in front of the car. Both the accused stood near to him by waving the knife and prevented others from approaching them and saving the deceased, by uttering that the same would be the fate, if anybody tries to save the injured. After a short while, both the accused went to the compound of the first accused with the weapons. After both the accused went away, PW2 and PW3 took Russel Raj to the hospital in the same car. First they went to Tiraviyam hospital. A Doctor came near to the car and examined Russel Raj, and after giving first aid, they were asked to take the patient to Medical College Hospital (MCH), Thiruvananthapuram. PW2's father was admitted there. On their way to MCH, Russel Raj screamed with severe pain and hence they went to Government Hospital, Neyyattinkara where the patient was given Oxygen and Glucose and referred to Medical College Hospital. PW2 and PW3 took Russel Raj in an ambulance to MCH. At the Medical College Hospital, the Doctor on examining the patient, declared him dead. The wound in the body of PW2 was sutured, his x-ray was taken and he was admitted in the MCH.