CHELLAPPAN MOHANDAS Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE two appeals filed under section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act read with section 379 Cr.P.C. arise out of a judgment of Kerala High Court. Chellappan Mohandas alias Mohanan (A -1) and Joseph alias Kunju (A -2) arc the appellants in Criminal Appeal No. 288/86 and Kutty Soman alias Somy (A -3) is the appellant in Criminal Appeal No. 207/87. These three accused along with Joseph alias Ponmlchan (A -4) were tried for offences punishable under sections 302/34 I.P.C. by the Additional Sessions Judge, Kottayam and were acquitted. The State preferred an appeal and a Division Bench of the High Court allowed the same and convicted all the four accused under section. 302/34 I.P.C. and sentenced each of them to suffer imprisonment for life. A -4 has not preferred any appeal in this Court.

(2.) ALL the four accused were active workers of the Marxist Communist Party. The deceased Sukumaran @ Suku was an I.N.T.U.C. worker belonging to the Congress (I) group. There were criminal cases between them and in one such case the deceased was acquitted on 20.3.82 a day prior to the present occurrence and that is said to be the immediate provocation. On 21.3.82 at about 2.30 P.M. 9 persons including the deceased and P.Ws. 2, 3, 9, 10 and 11 were engaged in carrying hay belonging to one Ammini from her paddy field to their houses. The deceased with a head load of hay was proceeding along the field towards the house of Ammini. P.Ws. 2 and 3 were returning after carrying the hay. At that juncture all the four accused armed with sword sticks came from behind and cut. the deceased with their weapons indiscriminately and ran away from the scene of occurrences with the weapons. On getting information, P. W. 1, the brother of the deceased, came and along with P.Ws. 2, 3, 10 and others he removed the injured deceased in a taxi to the Medical College Hospital, Koltayam. P. W. 5., a Doctor, examined the deceased at about 3.30 P.M. and issued Ex. P. 3, the wound certificate. The deceased, however, died at about 3.45 P.M. P. W. 1 gave a report Ex.: P.1 before the Sub Inspector, P.W. 14. A case was registered under sections 302/34 I.P.C. and the F.I.R. was issued. P. W. 15, the Circle Inspector of Police took over the investigation, held the inquest and sent the dead body for postmortem. P.W.6, Assistant Professor of Forensic Medicines conducted the autopsy and issued Ex.P. 4, the post -mortem certificate. He found a number of incised injuries all over the body. He opined that the deceased died as a result of bleeding and shock due to multiple injuries. The prosecution relied on the evidence of P.Ws. 1 to 4, 8 and 13 and also on the evidence of P.Ws. 5 and 6.Out of them P. Ws. 2,3,4 and 8 figured as the main eye -witnesses. The accused denied having anything to do with the incident and pleaded that they were falsely implicated because of the political enmity. A -3 pleaded alibi stating that he was engaged in the work of cutting a road leading to KSRTC Bus -stand at the relevant time and examined D. W. 1 in support of the plea. A -4 pleaded that at that time he was attending the staff council conference of Prakash Tutorial College and examined D.W.2, the Principal and also relied on some documents in support of the plea. The trial Court rejected the plea of A -3 but accepted the alibi pleaded by A -4.

(3.) THE High Court, however, held that the prosecution established the motive aspect of the case and a discussing the evidence of the above mentioned witnesses as well as that of P.W. 1 who spoke about the oral dying declaration held that the evidence of hostile witnesses should not be discarded in toto and that the evidence of P.W. 1 to the extent of oral dying declaration can be relied upon and taking the evidence of these witnesses in entirety held that the prosecution established the guilt of the four accused and accordingly set aside their acquittal. The High Court also held that the evidence adduced by A -3 and A -4 in support or alibi docs not inspire confidence.