KUNJAN SIVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) There are three accused in the case. They were charged with an offence punishable under S.302 read with S.34 IPC for having caused the death of one Gopalan on 8-3-1967 by beating and kicking him. The learned Sessions Judge convicted the 1st accused of the offence punishable under S.325 IPC and sentenced him to undergo R. I. for three years and to pay a fine of Rs. 100/- and in default to undergo S. I. for one month; the 2nd accused of offence punishable under S.302 IPC and sentenced him to undergo imprisonment for life; and the 3rd accused of offence punishable under S.323 IPC and sentenced him to undergo R. I. for 3 months. The accused have preferred this appeal against the convictions and sentences.

(2.) During the course of the argument, we directed notices to be issued to accused 1 and 3 under S.439 to show cause why their acquittal under S.302 read with S.34 should not be set aside, and a retrial ordered.

(3.) The prosecution case against the accused is as follows: The 2nd accused has married a sister of the 3rd accused. The 1st accused is a consanguine brother of the deceased Gopalan. The father of deceased Gopalan transferred a property which stood in his name to the 1st accused, his only son by the second marriage. His children through the first marriage were not given any share in the property. Gopalan was residing in a portion of the property. The father of Gopalan and the 1st accused were also residing there. Gopalan picked up a quarrel with the 1st accused on account of the transfer of the property to the 1st accused and the 1st accused had to execute a sale deed for six cents of property in favour of Gopalan to pacify him. The 1st accused bore a grudge against Gopalan on this account. The 2nd accused made indecent overtures to Sarojini, the daughter of Gopalan, when she was alone in the house of Gopalan. On coming to know about it, Gopalan beat 2nd accused. The 2nd accused bore a grudge against Gopalan for this reason. On 8 3 1967, Gopalan accompanied by his son, Kunjappan PW 1, boarded a bus at about 8.00 p.m. from near his house and went to Nagapuzha market. Gopalan met carpenter Bhaskaran there and paid him some amount. PW 1 saw the three accused getting out of a toddy shop in the market. They went westward along the Nagapuzha Kallurkad road and waited on the verandah of Ezhanikkad Itta's tea shop marked as No. 2 in the plan Ext. P4. Gopalan and PW 1 also went that way after some time. When they reached in front of the shop of Itta, the first accused approached Gopalan saying sImt¨«m, sImt¨«m. Gopalan then said "what Kunjumon", the pet name of the 1st accused being Kunjumon'. Suddenly the 1st accused caught hold of the neck of Gopalan and throttled him and asked his friends 2nd and 3rd accused to beat Gopalan The 2nd accused kicked Gopalan on the abdomen and hit him with a stone and the 3rd accused twisted his left hand. The 1st accused threatened PW 1, who was standing nearby, and asked him to go away. PW 1 out of fear, left for home. PW 1 on reaching home reported the matter to his mother, PW 2, and out of fear they went to PW 13's house with the idea of spending the night there. PW 1, however, proceeded to the house of his father's elder brother, Krishnan. Krishnan was not there when PW 1 reached his house. PW 1 told the matter to Krishnan's wife, PW 7, and returned to the house of Ulahannan, PW 13. Then, he came to the scene of occurrence and found his father lying dead. Within a short time, Krishnan also came to the scene of occurrence. Krishnan and PW 1 proceeded to Kallurkad outpost and reported the matter to PW 18, the Police Constable. He took them to the Thodupuzha Police Station where PW 20, the Circle Inspector of Police took Ext. P1 statement from PW 1 and registered a case against the three accused. PW 20 conducted the inquest, and PW 9, the post mortem examination on the dead body. Accused 1 and 2 were arrested from a hotel in Thodupuzha on 2-4-1967. After investigation the accused were charge sheeted.