ANTONY Vs. STATE OF KERALA

JUDGEMENT

(1.) Accused 1 and 2 in Sessions Case No. 36 of 1959 of Quilon Sessions Court are the appellants. They, along with one Xavier Peter who was the 3rd accused were tried for the offences punishable under S.302, 307, 324 and 109 I. P. C, in connection with the murder of one Kasmail and one George, a nephew of Kasraail's wife and the attempt to murder PWs 1 and 2 both sons of Kasmail. The 3rd accused was acquitted by the learned Sessions Judge. The 1st accused was found guilty of murder and sentenced to the extreme penalty subject to confirmation by this Court. He was further convicted under S.326, I. P. C. but no separate sentence was awarded under that count. The 2nd accused was found guilty under S.304, Part II, I. P. C. and sentenced to undergo rigorous imprisonment for 7 years. He was also found guilty under S.326, I. P. C. and sentenced to undergo rigorous imprisonment for 2 years with the direction that the sentences will run concurrently.

(2.) The 1st accused Antony is the son of the 3rd accused Peter. The 2nd accused Lorance is the son of a daughter of the 3rd accused. All of them live in the same house in Kozhithottam in Chavara. The 1st accused had married P.W. 7, Zabina, the daughter of the deceased Kasmail, some five years prior to the incident. A sum of Rs. 2,000/- was promised as dowry and as a security for which Kasmail had executed a hypothecation bond charging his properties. In spite of repeated demands by the 1st accused, the amount was not paid. This estranged the relationship between him and his wife. He ill treated her and even sent her away to her father's house, though he later brought her back. The day previous to the incident, the 2nd accused beat PW 7. The same evening at 8 P. M., PW 1 the brother of PW 7 happened to meet the 2nd accused near the Kozhithottam Church and chastised him for beating his sister. Though the 2nd accused did not retaliate immediately, the next day, that is on 6-4-1959 at about 8 or 8.30 when he saw PW 1 standing near the Kozhithottam bridge, he ran up to him and gave him a blow. There was a tussle and both fell down. Some bystanders separated them. PW 1 started to leave the place when, accused coming up from behind, gave him a blow and ran away. PW 1 went home and reported to his father Kasmail about the assault on him by accused 1 and 2. The prosecution alleges that at about 9-30 P. M. Kasmail proceeded to the house of the accused to question them about the illtreatment of his daughter and the assault of his son. Kasmail met the 3rd accused in the courtyard of his house and there was an exchange of hot words between them. The 3rd accused then beat Kasmail with a stick and pushed him out of the compound. Accused 1 and 2 were also following them; accused 1 with a knife and accused 2 with a dagger. When they reached the northern boundary of the accused's compound and had taken a few steps into the adjoining property, the 1st accused suddenly stabbed Kasmail on the back with his knife. Kasmail fell down. Seeing that, his sons PWs 1 and 2 and the deceased George came running up. When PW 2 bent down to lift up Kasmail, accused 1 stabbed him on the back. He too fell down. Then George knelt down to lift Kasmail and he was stabbed by the 2nd accused on his back. George fell down. Then PW 1 in his turn stooped to lift Kasmail and accused 2 gave him also a stab on the back. Then all the three accused escaped to their house carrying the weapons with them. It is alleged that PW 1 who had been stabbed, followed the accused to the house demanding that he too may be killed. He went up to the verandah and as the accused could not be found in the house, he returned and fell down at the place where the others had fallen. The neighbours who had gathered by this time, rendered first aid to the injured and removed them to the hospital. On the way, they stopped at the Chavara Police Station, The Head-Constable in charge of the Station finding that the injured were in a grave condition, directed them to be taken to the Quilon District-Hospital. After making an entry in the General Diary, he also followed them to the hospital. By the time the police reached the hospital, Kasmail was already dead and George was not in a condition to speak. The statement of PW 2 was recorded by PW 28, the Circle Inspector of Police. It is the first information in the case and is marked Ext. P. 1. George expired at 1.30 on 7-4-1959. PWs 1 and 2 were admitted as inpatients in the hospital. PW 1 was discharged on 1-5-1959 and PW 2 on 29-4-1959.

(3.) The accused were arrested on 23-4-1959. In Ext. D4, the Bail Application filed on their behalf, five days after the arrest, it was stated that when PW 1. reported about the assault on him by accused 1 to Kasmail and others who had gathered in a house near Kozhithottam Church in connection with a marriage, Kasmail, George, PWs 1 and 2 and fifteen others armed with weapons went in a body to the house of the accused with the intention of wreaking vengeance. They surrounded the 3rd accused who was lying on the verandah and thrashed him. Seeing this, the 1st. accused apprehending that his father as well as himself would be killed, took out a knife and stabbed some of them. When questioned in the Trial Court under S.342, Criminal Procedure Code, the 1st accused stated that the two deceased, PWs 1 and 2, along with witnesses 24, 25 and 27 and one or two others came running from the north shouting. Seeing this, his wife Zabina said that none of them should stir out, and fearing that he would be killed, she took him to the southern room of the verandah and closed the door. From there, he heard his father's cry that he was being killed. Then pushing his wife aside, he opened the door and came out. He saw seven or eight persons surrounding his father on the verandah beating him and fisting him. Apprehending that his father would be killed by them, he pulled out a knife and stabbed four or five of them. As soon as he took out the knife, PW 24 got out of the verandah and ran northwards followed by the others. His wife followed them with a lantern while he and his father got inside the house and then left the place by a side door. He admitted that he and the 2nd accused beat PW 1 near the bridge in the evening and added that PW 1 left the place vowing vengeance. The accused went on to state that after he reached home, he reported the matter to his father. His father told him that they may come to retaliate and advised them all to keep inside the house while he stayed in the verandah because he felt that being an old man none would harm him. It was while his father was talking that the deceased, PWs 1 and 2 and others came in a body from the north shouting. Accused 2 and 3 completely denied having taken part in the incident. The 2nd accused supported the version given by the 1st and alleged that while the 3rd accused was advising all of them to keep inside the house, he, from where he was standing in the courtyard, saw some persons running towards the house making a loud noise. He ran into the kitchen. Within a minute, he heard his grandfather crying out that he was being killed and getting frightened, he slipped out of the house by the western door and escaped. The 3rd accused also endorsed the 1st accused's version. He stated that when accused 1 and 2 reported the incident to him, he told them that PW 1 and party may come to retaliate and that being an old man they may not harm him but he advised his sons to go inside the house. A little latter, a group of persons came up from the north shouting, got on to the verandah and started to assault him. He was kicked, fisted, beaten. He cried out that he was being killed and then he found his son standing nearby with a pen-knife and three or four persons in the group bleeding with injuries. The assailants left the house and went northwards while he escaped by the western door.