SHANIFA BEEVI Vs. STATE OF KERALA

JUDGEMENT

(1.) These appeals have been preferred by the appellants challenging the judgment of conviction and order of sentence passed by the 1st Additional Sessions Judge, Thiruvananthapuram in S.C. No.1489/2004 by which both appellants were found guilty for offences under Sec. 302 read with Sec. 34, Sec. 448 read with Sec. 34, Sec. 323 read with Sec. 34 and Sec. 324 read with Sec. 34 of I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,00,000.00 (Rupees One Lakh only) each with a default stipulation of rigorous imprisonment for two years, also to undergo rigorous imprisonment for one year, and further to undergo rigorous imprisonment for six months, and again to undergo rigorous imprisonment for one year respectively for the above offences. Sentences were directed to run concurrently.

(2.) Case of the prosecution is as under:- The appellants and the deceased were neighbours. The appellants purchased 5 cents of the property of the deceased in the name of 2nd accused and began to stay there. There was persistent boundary disputes and constant friction between the appellants and the deceased. The incident happened on 14/07/2002 at 10.30 P.M. Two days prior to the incident, the deceased and the first accused picked up quarrel in connection with the matter. Out of the said enmity, on the fateful day, accused 1 and 2 trespassed into the residential compound of the deceased Babykuttan located at Kurinchilakkad, Anakudi, Kallara Village in furtherance of their common intention to kill him. They abused Babykuttan and also raised imputations against his wife and provoked him to come out of his house. When Babykuttan approached him, 1st accused waved a bamboo stick at him. Seeing that, Babykuttan took a wooden log and swayed. Then the 1st accused asked his wife, the 2nd accused, to bring the sword kept in his house. 2nd accused brought the sword. 1st accused got the sword from 2nd accused and at once, 2nd accused struck the deceased with a bamboo stick. The deceased took out and threw away the bamboo stick from the 2nd accused. At that time, the 1st accused having exhorted that he would chop the deceased to death, repeatedly inflicted cut injuries on the back of his chest with the sword and inflicted injuries on the neck twice. When PW2, the wife of the deceased rushed to intervene and ward off further blow and asked the 2nd accused as to why such cruelty is done to her husband, 2nd accused also exhorted that they would cut him into pieces and the 1st accused slapped on her right ear.

(3.) Learned Senior counsel for the 1st appellant Sri.Grashious Kuriakose argued that the evidence adduced through PW1 to PW3 are not believable as they are highly interested witnesses. The aggression was started by the deceased. There is no evidence to show that the appellants were carrying the weapon of offence with them. It can be seen that the weapon stated as used by the aggressors at the time of incident was a chopper. But the material object produced is a sword. The recovery is also not proper. Motive for the crime is not proved by the prosecution. Deceased gave a blow to the 1st appellant. The appellant was in fear of death. He, if at all admitted for the sake of argument, exercised his right of private defence. He pleaded for an acquittal by extending benefit of doubt. At any rate, the offence would not fall under Sec. 302 of I.P.C. The evidence adduced by the prosecution against the 1st appellant almost would amount to an offence defined in the second limb of Sec. 304 of I.P.C. As far as the 2nd appellant is concerned, she had not committed any overt act leading to murder and there is no evidence of any common intention to commit murder as well.