MOHANAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) Along with others, the four appellants were on pilgrimage to Sabarimala. At Erumeli, two of them (accused 3 and 4) picked up quarrels with some other pilgrims in front of the tea shop of PW 2 by about midnight on 7-12-1985 and received some beatings. When the fourth accused fell down, the third accused went and brought accused 1 and 2. Suspecting PW 2 to be one of the assailants, all the four jointly assaulted him. Deceased Rajan, an adjacent shop owner, rushed to the scene, probably on a peaceful errand to prevent the attack. First accused took out MO 1 knife from his loins and stabbed Rajan twice resulting in injuries. When PW 2 escaped and ran away, the other three also joined hands in attacking Rajan. He was pulled down. Then the first accused inflicted the fatal stab on his right chest when he attempted to rise up. He walked to his shop and then fell dead. On these allegations, the four appellants were tried in Sessions Case No. 22 of 1986 before the Sessions Judge, Kottayam for offences punishable under Ss.323 and 302 with the aid of S.34 of the I.P.C. Common murderous intention was found. Each one was sentenced to imprisonment for life and rigorous imprisonment for one year, permitting the sentences to be suffered concurrently.

(2.) PWs 1, 2, 3 and 5 are the occurrence witnesses. Appellants were utter strangers to them. A test identification parade was conducted under the supervision of the Magistrate, examined as PW 8. Ext. P 4 is the proceeding. Though PW 2 identified all the accused in the parade and PW 5 identified accused 1, 3 and 4, PW 1 could identify only accused 3 and 4 and PW 3 identified accused 2 and 3 alone. Lack of identification or defect in identification was the main contention. The incident is also alleged to have taken place in a different manner involving other persons and injuries to the accused also. Proof of common intention was also disputed.

(3.) The fact that PW 2 and Rajan sustained injuries at the time and place alleged by the prosecution and Rajan succumbed to the injuries is beyond dispute. Evidence of PWs 1, 2, 3 and 5 when taken along with Ext. P5 post-mortem certificate and Ext. P6 wound certificate prepared by PW 9, amply prove these facts. The injury sustained by the deceased is fatal involving the heart and lungs. It is evidently an intentional and forcible stab on a vital part of the body and, the intention was nothing short of murder.