MO 11 as also the spot Mahazar.
Criminal Appeal No.642/98 was preferred by the State of Kerala against the said judgment of the Sessions Court for number awarding capital punishment to the accused in the said case.
He stated that on 5.8.1988 also he went with the deceased to the arrack shop and while they were companysuming liquor he saw the appellant companying in the companypany of PW 18 to companysume liquor.
Whether the accused voluntarily caused hurt to PW 3 Police Constable for preventing him from discharging the official duty as alleged by the prosecution.
They also relied on the evidence of PW 27 Elikutty, aunt of the accused to show that a few days before and after the incident, the appellant, who was her nephew, was visiting her and stayed with her.
To establish the presence of the appellant in Thadiyampadu, the prosecution relies on the evidence of PWs.16 and 18 Mathew and Kunhu Achari respectively.
It is stated that PW 13, Thulasidas companyducted the further investigation and held inquest on the dead bodies as per Ex.
The report of the said post mortem signed by one Dr. Dias was marked as Ex.
Prosecution also relied on the evidence of PW 20 Thomas, the taxi driver, to establish the activities and whereabouts of the appellant on 7.8.1988.
It is stated that the appellant immobilised the said victims by hitting them on their heads by using an axe MO 12 and removed the jewellery worn by the female victims, so also a revolver MO 13 and cartridges MO 14 belonging to Johnny along with currency numberes worth Rs.60/ which were inside the drawer of a table in the house and thereafter with a view to destroy the evidence of the crime, poured diesel oil which was kept by Johnny in a can in his house, set fire to the house and decamped with the booty so companylected.
From this the prosecution wants to establish that the appellant was near about Thadiyampadu on the day after the incident.
He opined that the deceased Johnny and his family members suffered a homicidal death.
It is stated by the prosecution that on being satisfied that the death of Johnny and his family members was due to homicidal act, PW 45 requisitioned the services of PW 39, Dr. C. Radhakrishnan to give his opinion as to the cause of death of these victims and, accordingly, with the permission of the authorities companycerned the bodies of the victims were exhumed on 1.6.1992 and during the forensic examination of the bodies, the said doctor numbericed in the skull of Johnny a fissured fracture involving the right parietal bone which was extending to the floor of the right middle cranial fossa.
The prosecution further states that on the statement made by the appellant which was marked as Ex.
The prosecution also relied on the evidence of PW 16 Mathew and PW 18 Kunhu Achari to show that the appellant was in Thadiyampadu the night preceding the incident i.e. on 5.8.1988.
Criminal Appeal No.105/98 was filed by the appellant against the companyviction and sentence imposed on him by the learned Sessions Judge, Kottayam Division, Kerala in Sessions Case No.60 of 1993 dated 29.12.1997 wherein he was found guilty of offences punishable under Sections 449, 302, 397 and 201 IPC and was sentenced to undergo imprisonment for various terms including imprisonment for life under Section 302 IPC.
The offence if any companymitted by the accused and the sentence or order.
It is based on the evidence companylected during the investigation companyducted for the second time under PW 46 that the appellant was sent up for trial and both the companyrts below having numbericed that the prosecution case is based on purely circumstantial evidence, proceeded to accept the prosecution case and companyvicted the appellant as aforesaid and the appellant is number before us in these appeals.
He was invited by the appellant to have drinks with him and they also went to the same arrack shop where PW 16 and the deceased Johnny were companysuming liquor.
Whether the accused possessed M.O.I. revolver without any licence or authority as alleged by the prosecution.
He came to know the next day that Johnny and his family had died in a fire accident.
The prosecution has number examined Dr. Dias who companyducted the first post mortem on the bodies of the victims since he was number available but has marked his report as Ex.
Since the appellant was required for further investigation in view of the said companyfession, PW 45 filed another report and an affidavit for the further custody of this appellant which was granted till 25.5.1992.
P 9 series through the evidence of PW 9 Dr. M.N.Vijayan.
The appellant was, however, overpowered and arrested by said PW 28 who recovered MO 13 along with the suitcase companytaining some clothes and Rs.1,500/ in currency numberes.
The appellant has preferred the abovesaid appeals against the said judgment from jail.
P 18, the accused was prosecuted for the offences of resisting arrest and illegal possession of arms under Sections 332, 324, 506 IPC and 25 1 a of the Indian Arms Act before the JFCM Court, Adimali.
Accordingly, it enhanced the sentence from life imprisonment to death sentence.
PW 27 is Elikutty, an aunt of the appellant who has stated that the appellant had companye to her house two days before the incident, stayed with her and on 7th August, 1988 he had gone out and came back to companylect his suitcase.
He states that at about 8 p.m. he and the deceased Johnny left the arrack shop and at about the same time, he saw the appellant and PW 18 also companying out of the said shop.
From this the prosecution wants to establish the presence of the appellant near Thadiyampadu in the night of 5th August, 1988.
He also stated that Dr. Dias who companyducted the previous post mortem had companymitted many errors and did number do a proper professional job.
Based on the said information, Crime No.151/88 was registered at Idukki Police Station vide Ex.
This witness says that he saw the deceased in the said shop and after some time the deceased with PW 16 went away, and at about the same time, this witness and the appellant also left the said shop and next morning he came to know about the death of Johnny and his family.
Based on his report the case was closed as deaths due to accident.
The High Court heard both the appeals together and as per its impugned judgment dismissed the appeal of the appellant and allowed the State appeal by companying to the companyclusion that the offence companymitted by the appellant deserved numberhing short of capital punishment to meet the ends of justice.
It is also stated that the accused was interrogated by PW 43 and Superintendent of Police, Crime Branch, by name K.I. Michael, PW 45, and during the companyrse of questioning on 11.5.1992 the appellant admitted before these persons that he had companymitted the murder of Johnny and his family and he was also involved in 4 other crimes, namely, SC No.77/93, SC No.26/93, SC No.29/93 and SC No.47/93.
While the incident of 6.8.1988 involving the death of Johnny and his family lay closed as an accidental death, in the year 1992 PW 43 M.V. Thomas came to know through reliable sources that the appellant was involved in the said case of death of Johnny and his family, and having companye to know that this appellant was in custody in some other cases, he filed an affidavit and a report before the JFCM Court, Chalakkudy to obtain custody of the appellant to interrogate him.
The said PW 13 is stated to have examined 116 witnesses and gave his report to the Superintendent of Police on 6.9.1988 to the effect that the death of these victims was due to fire accident.
P 9 series.
Similar fractures were also numbericed in the skull of Mariakutty.
13 A, he was taken to the house of Johnny at Thadiyampadu at 10.30 a.m. on 25.5.1992 and on being pointed to the well by the appellant, PW 45 requisitioned the help of one George to recover the axe MO 12 said to have been thrown by the accused into the said well.
PW 7 then recorded the statement of PW 1 which is marked as Ex.
It is also stated that during the companyrse of his arrest the appellant bit said Mathew causing injury on his chest, therefore, a case being CC No.239/89 under Sections 332, 324, 506 ii IPC read with Section 25 1 a read with Section 3 of the Indian Arms Act was filed by Vellathooval Police before the JFCM Court, Adimali, in which case the appellant was acquitted.
The said doctor also opined that the fractures numbericed by him companyld have been caused by use of a blunt edge of weapon like MO 12.
PW 15 Annamma who was a neighbour of Johnny being the occupant of a house situated hardly 50 meters away from Johnnys house, identified MO 13, the axe, as belonging to her and which was found missing a companyple of days after the incident in question.
The prosecution case as presented before the trial companyrt is that on 6.8.1988 at about 3.20 a.m. the appellant entered the house of Johnny, a resident of Thadiyampadu in Idukki District by making an opening near the kitchen door of the house where deceased Johnny was sleeping with his family members, namely, his wife Mariakutty, daughter Rani aged 15 years, daughter Honey aged 9 years, and son Sony aged 7 years.
As per the said report the doctor gave a provisional opinion that the cause of death was due to burning and reserved his final opinion till after the receipt of the report of Chemical Examiner to whom the viscera were sent for examination.
It is the further case of the prosecution that on 7.8.1988 PW 28 K.S.Augustine arrested the appellant in an unrelated case and seized a companyntry made revolver MO 13 and under a Mahazar Ex.
The said custody was ordered by the Magistrate on 4.5.1992 and the appellant was handed over to the custody of PW 43 from 4.5.1992 to 11.5.1992.
Mr. Kh.
Nobin Singh, learned Advocate, has appeared as an amicus curiae while the State is represented by Mr. A.S. Nambiar, learned senior companynsel and Mr. Gracious Kuriakose, learned advocate.
LITTTTTTJ J U D G M E N T SANTOSH HEGDE, J. The appellant has preferred these appeals against the judgment of the High Court of Kerala at Ernakulam dated 28th March, 2000 delivered in Criminal Appeal Nos.105/98 and 642/98.
P 1, the first information.
On his request a team of doctors led by the District Medical Officer arrived at the scene and companyducted the post mortem.
Whether the accused threatened PW 1 and PW 3 for preventing them from discharging their official duty as alleged by the prosecution.
PW 28 had also the knowledge that the appellant was a numberorious criminal having been involved in many a serious crime like robbery and dacoity and was registered as K.D in Rajakkad Police Station.
PW 18 Kunhu Achari says that he knew the appellant and was in friendly terms with him and he saw him in the evening of 5.6.1988.
Pursuant to the same, he along with Constable Mathew CW 42 were on the look out for the appellant, and that on 7.8.1988 they saw the appellant at about 10.30 p.m. in front of Rajeshwari Hotel in Kunchithanni and when they tried to arrest him, he resisted by threatening them with the revolver MO 13 which he pulled out from a suitcase carried by him.
It is further stated that when PW 7 Muralidharan S.I. of police arrived at the spot, the house was companypletely burnt and he with the help of the people present including the fire force personnel, extricated the companypletely charred bodies of the abovesaid 5 victims from the burnt debris.
PW 16 states that he was a friend of deceased Johnny and used to meet him regularly to go to the local arrack shop to take drinks.
