Sivasankaran Moosad and Others vs The State of Kerala

Koshi, C.J.—The Referred Trial relates to the sentence of death passed against accused 1 to 3 in Sessions Case No. 7 of 1957 on the file of the Court of Session, Kozhikode Division. The Criminal Appeal (56 of 1957) is by those accused against the convictions and the sentences passed against them by the learned Sessions Judge, who tried the case. The three accused persons were tried before the learned Sessions Judge, Kozhikode Division, for causing the death of one Parameswaran Moosad, an elder brother of accused 1 and 2. All the three accused stood charged u/s 302 read with Section 34, Penal Code. There was a further charge u/s 326, Penal Code, against accused 3 for causing grievous hurt with a deadly weapon to one Gangadharan (P. W. 1), at the same time and place and during the course of the same transaction which resulted in the death of Parameswaran Moosad. While convicting all the three accused-persons of murder u/s 302 read with Section 34, Penal Code and imposing the extreme penalty of the law against them, a sentence of rigorous imprisonment for one year was also passed against accused 3. We heard the appeal and the referred trial at the vacation sitting of the Court on May 22, 1957 and now dispose of the case by this judgment. The prosecution case against these accused persons was that in furtherance of the common intention of all of them, they committed the murder of the deceased Parameswaran Moosad, by accused 1 and 2 cutting him With kukris and accused 3 cutting him with a sword at about 5-15 p.m. on December, 17, 1956 on the Kozhikode Balusseri Road in Vengari Amsom in Kozhikode Taluk. Parameswaran Moosad sustained not less than 22 injuries at the hands of his assailants and as the result thereof he died the same day at 10-30 p. m., after he was admitted at the Kozhikode Headquarters Hospital for treatment. The deceased was the proprietor of a cinema theatre called "Sreekumar Talkies" and it would appear that everyday, after 5 p. m., he used to go to the theatre. The theatre was nearly one mile to the north of his house and it was while he was on his way to the theatre as was his wont, accompanied by P. W. 1, that the occurrence took place. On their way, in front of a reading room known as "Prathibha" P. W. 1 and the deceased saw the three accused persons standing on the road side. The accused also walked along with them northwards, the deceased was in front closely followed by accused 1 and 2 and behind them were P. W. 1 and accused 3. When they had gone near the tea shop of one Ummer (P. W. 4), accused 1, who was wearing a shirt took out from his waist a kukri and cut the deceased above his right elbow. On receipt of the cut the deceased turned to the right when accused 2 cut him below his right knee with a similar kukri taken from the place of its concealment, namely, the waist. Accused 2 was also wearing a shirt. While administering that cut accused 2 asked the deceased whether he had not eaten Rs. 5000 of Kakkodi Bridge. Immediately on receipt of these two injuries the deceased sat down, reclining against the adjacent compound wall on the side of the road: At that time P. W. 1 approached accuse d 1 and 2 with a view to catch one of them, but accused 3 then intervened and asked him to stop there. When the witness turned round accused 3 took out a club from his waist and beat him on the head. Accused 3 also had a shirt on them. Three more blows were administered to P. W. 1 by accused 3 and these were on his left ankle. All the while accused 1 and accused 2 were cutting the deceased with kukris. Remaining in the same sitting posture the deceased tried to ward off as best as he could the cuts. P. W. 1 sustained one or two minor injuries on the head, but those would seem to have been caused accidentally by the kukri in the hands of accused 2 coming into contact with the head when the witness wanted to catch accused 1. By this time some people had gathered around the place where the occurrence was going on, but accused 1 and 2 scared them off by shouting that nobody should go near. After P. W. 1, another eye-witness, P. W. 2 tried to approach the place where the deceased was being attacked, but accused 2 chased him away. P. W. 2 had therefore to keep himself away at some distance from the place of attack. After that one Kandankutty, who ran up to the place was chased away by accused 3. After running after him for some distance, accused 3 returned to the scene. There was then a sword in his right hand, but he still had the club with him at that time it was in the left hand. On his return accused 3 also joined accused 1 and 2 in inflicting cut wounds on the deceased. He gave 2 or 3 cuts with the sword. Accused 1 and 2 continued the attack on the deceased and accused 1 repeated what accused 2 had said earlier whether the deceased had not swallowed Rs. 5,000 of Kakkodi Bridge and further whether they should also not live. The right foot of the deceased got served from the leg by cuts inflicted by accused 1 and before leaving the scene he (accused 1) said, "we don''t mind being hanged". A light blue shirt which he was wearing had got bloodstained J he removed that and threw it at the scene. After that all three accused together, left the place running, with their weapons still in their hands. When they had proceeded some distance southwards, P. W. 7 an employee of the "Sreekumar Thalkies" happened to proceed along the road northwards on a bicycle. He was going to the theatre. They ran after him, but he turned his bicycle back and escaped from being caught. When they found that they cannot catch him, accused 3 threw his club at him. That did not hit him but fell in a compound of the eastern side. Besides P. W. 7, P. W. 6 has also spoken to this part of the case, that is, the pursuit of P. W. 7, P. W. 6 was having a shop a few furlongs south of "Sreekumar Talkies".

After escaping from being caught by the accused, P. W. 7 went straight to the house of P. W. 8, the eldest brother of accused 1 and 2 and took him to the scene of the crime. However by the time they went there the deceased and P. W, 1 were removed to the hospital in a bus that came that way. The victims reached the hospital by about 7-30 p.m. and at that time P. W. 5, the Medical Officer in charge, was attending to some other urgent case. Information was, however, immediately given to the police that the deceased was brought there severely wounded. P. W. 5 was able to attend to the injuries of Parameswaran Moosad only by 8 o''clock and after preliminary attention was given at the casualty ward, he was removed to the operation theatre. By 9 o''clock all the aid P. W. 5 could render was finished. Then P. W. 10, a Head Constable of Police who had gone to the hospital on receipt of the information about Parameswaran Moosad''s arrival in the hospital, recorded a statement (Ext. P. 2) from him about the occurrence. This statement formed the basis of the First Information Report in the case and it implicated accused 1 to 3 as having attacked him on his way to the theatre at about 5-15 p.m., accused 1 and 2 attacking him with kukris and accused 3 with a sword. The fact that P. W. 1 got injured during the course of the incident also finds a place in that statement. The injuries on P. W. 1 were also attended to at the hospital and he remained an inpatient for 11 days. Those who took the deceased and P. W. 1 to the hospital also carried with them in the bus the severed right leg of Parameswaran Moosad and the blood-stained shirt (M. O. II) which accused 1 had thrown at the place. As stated earlier Parameswaran Moosad died at 10-30 p.m. (17th December. 1956) and when the police received intimation about it they altered the case registered u/s 236, Penal Code, into one u/s 302.

Early next morning P. W. 15 the Sub-Inspector of Chevayoor Police Station within whose limits the occurrence took place recovered from the scene of the crime a blood-stained muffler (M. O. III) and a pair of blood-stained sandlas (M. O. III). These are said to have been worn by the deceased at the time of the occurrence. As indications of profuse bleeding were noticeable at the place, he took some blood-stained earth (M. O. V), leaves (M. O. VI) and twigs (M. O. VII) from there. These recoveries were at 6-30 a.m. Later in the evening he recovered from a compound adjoining the scene of the crime the club (M. O. 1) with which accused 3 is alleged to have beaten P. W. 1 and which he afterwards threw at P. W. 7. The blood-stained shirt which accused 1 had thrown away at the scene and which was removed by P. W. 1 and others to the hospital, P. W. 15 took into custody during the night between 17th December 1956 and 18th December 1956. The inquest over Parameswaran Moosad''s body took place between 8 a.m. and 12 noon on 18th December 1956. This was conducted by P. W. 11, the Sub-Inspector of Police of the Nadakkavu Station within the limits of which the Headquarters Hospital is situate P. Ws. 1, 5 and 10 were questioned at the inquest. P. W. 5 conducted the post-mortem examination at 1 p.m. (18th December 1956) and found that besides the 22 injuries he noted in the wound certificate (Ext. P. 1) there were as many as 10 internal injuries. Ext. P. 3 is the post-mortem certificate and in that document, as also in his evidence P. W. 5 assigns the cause of death as "shock and hemorrhage as a result of multiple incised injuries". The medical evidence in the case requires to be looked into in some detail, but we shall do that later.

It is now convenient to refer to the movements of the accused after they escaped running from the scene of the crime. P. W. 9 is an old acquaintance of accused 1 and 2 and according to him all the three accused persons met him at Feroke at about 9 p.m. during the night of the occurrence. They wanted his assistance to procure railway tickets for them to leave for Tirur. He supplied them with tickets and they left for Tirur by the 12-45 night Express. The investigating officers in the case would have it that they could not get at the accused in spite of vigilant search as they had absconded. However on 22nd December 1956 all of them surrendered before the Sub-Magistrate, Kozhikode. By that time P. W. 16, Circle Inspector of Police, had taken up the investigation and after completing it he laid the charge sheet on 5th January 1957, accusing all three accused of the murder of Parameswaran Moosad and accused 3 of causing grievous hurt with a deadly weapon to P. W. 1.

Both before the Committing Magistrate and at the Sessions Trial the accused denied that they had any part or lot in causing the death of Parameswaran Moosad or in causing grievous hurt to P. W. 1. Their defense was that the case was foisted upon them on account of the enmity of their eldest brother (P. W. 8) towards them and according to them the prosecution witnesses who prove the occurrence are all dependents or companions of P. W. 8 and the deceased Parameswaran Moosad, with both of whom the relations of accused 1 and 2 were anything but cordial. There was also a suggestion that it was Krishnan Moosad, the immediate younger brother of Parameswaran Moosad who inflicted injuries on him. Accused 3 claimed to have been a friend of P. W. 8 and he would have it that, because he declined to assist P. W. 8 in a certain wrongful action, advantage was taken off by P. W. 8 of the quarrel between Parameswaran Moosad and Krishnan Moosad to implicate him in the incident.

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We shall turn now to the medical evidence. From the testimony of P. W. 5, as also from the wound and the post-mortem certificate, issued by him, Ext. P. 1 and Ext. P. 3, it is clear that Parameswaran Moosad met with his end as a result of the injuries inflicted on him in the evening of 17th December 1956. The learned Sessions Judge has quoted, in his judgment the description of the external and internal injuries sustained by, Parameswarn Moosad as noted by P. W. 5.

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While assigning the cause of death as shock and hemorrhage resulting from multiple injuries, P. W. 5 also stated that it was impossible for a man receiving these injuries to survive, and the cumulative effect: of the injuries was necessarily fatal. The witness made it plain, that all the important arteries had been cut as a result of the injuries. It is needless to observe that if the case was that one person had inflicted these injuries, no court would have hesitated to find him guilty of murder.

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The lower court has after a careful examination of the evidence of the eyewitnesses found them worthy of credence and we are unable to find any reason to differ from that view. The evidence of P. W. 1, has also made it clear that the accused kept concealed the weapons which were with them when he and the deceased first saw them on the road and that the weapons were taken out from their places of concealment only when they thought it was time to attack. All three accused wore shirts and the kukris and the club would appear to have been kept in the waist with the shirt covering them. According to P. W. 2 the sword which accused 3 used to cut the deceased was kept strapped to his body. It was taken out only when accused 3 returned to the scene after chasing away Kandankutty.

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On the whole we are definitely of the opinion that the learned Sessions Judge was right in holding that the attack on the deceased Parameswaran Moosad was made by these three accused persons and that accused 3 also attacked P. W. 1 Parameswaran Moosad died as a result of the ''injuries and P. W. 1 got his left ankle fractured by the blows accused 3 gave him. The conviction of accused 3 u/s 326, Penal Code, is therefore right and the sentence of rigorous imprisonment for one year awarded in respect thereof is by no means excessive. That conviction and sentence are therefore confirmed. As for the attack on Parameswaran Moosad, the prosecution case, as indicated earlier, was that it was a preconcerted one and that all accused persons were actuated by a common intention to bring about his end. Keeping in view the provisions of Section 34, Penal Code, and the decisions of the Privy Council and the Supreme Court bearing on that section, the lower court found no difficulty to accept the prosecution case and convict all the accused persons of murder. We fully concur with that conclusion. That no one cut inflicted on the deceased was in itself fatal is no reason to hold that the offence committed is not murder or that all the accused who participated in the occurrence cannot be convicted of that offence. The fact that there was enmity between accused 1 and 2 on the one hand and the deceased on the other is not only proved in the case but is also admitted by accused 1 and 2. Acute differences over settlement of accounts with respect to the amount entrusted to the deceased arose at least one month prior to the incident and the climax was reached the previous day when accused 1 and 2 left the deceased telling him that "we will show you". Every evening the deceased used to go to the theatre and these accused persons knowing that, lay in wait for him on the public road along which he had to pass from his house to the theatre. They were armed with lethal weapons and those weapons were kept concealed. For a short distance the accused walked along with the deceased as if they meant no harm, but not long after accused 1 suddenly took out his kukri and attacked the deceased soon followed by the attack of accused 2 with a similar kukri. P.W.l who tried to intercede was asked to stop and accused 3 intervened at that stage and beat him severely. The attack continued for some time and other people who wanted to rescue the main victim and save him from further attacks were similarly prevented by accused 2 and accused 3. The injuries sustained by the deceased - external and internal - were of a serious nature even though no vital part as the head or the chest or the abdomen was involved. No important artery, however, escaped being injured. The medical evidence is positive that a man sustaining these injuries could never survive and that Parameswaran Moosad died as the cumulative effect of the injuries inflicted upon him. It was a merciless attack by two brothers on their elder brother, assisted by another who had his own reasons for ill-will towards him and in all the circumstances of the case it is impossible to believe that they did not intend to kill Parameswaran Moosad. They came to the scene together well-prepared and well-armed. The weapons used by them were of an unusual kind; kukris, a sword and a wooden club. The kukris are said to be curved knives, each a cubit long with a blade, 2 1/2" wide. The sword it would appear was more than a cubit. The club, M. O. 1 is a rather heavy one. All the three ran away together and escaped to Tirur in the dead of the night. They remained in hiding till the 22nd (December) and then, on that date, all the three together surrendered themselves before the Sub-Magistrate. These would appear to us tell-tale circumstances that they were acting in pursuance of a common intention. The nature of the weapons used and the extent and the enormity of the injuries inflicted would clearly show that the common intention was to bring about the death of their victim. No other inference would seem to be possible in the circumstance of the case. That they never minded the consequence is clear from what accused 1 said "we don''t mind being hanged". All attempts at intervention by onlookers were resisted by force or show of force. On the whole, the conduct of accused persons shows that there was preconcert, the enmity and the ill feeling show that there was motive and the kind of weapons used and the number and the grievous character of the injuries inflicted clearly indicate what the nature of the common intention animating them was. As each case is to be decided on its own facts, we do not consider it necessary to cite authorities to support our conclusion. The offence committed is nothing short of murder and all three are equally guilty. As an unarmed man walking along an important high way in a town like Kozhikode was deliberately and mercilessly attacked with deadly weapons in broad day light, regardless of the consequence and killed, we consider the learned Judge below awarded the proper sentences to the culprits when he imposed on them the extreme penalty of the law. We confirm the conviction for murder of all three accused and the sentence passed therefore against them by the lower court. Their appeal is dismissed. The reference will stand answered accordingly.