Santosh Hegde, J. - (1.) 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. Criminal Appeal No. 105/98 was filed by the appellant against the conviction 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. Criminal Appeal No. 642/98 was preferred by the State of Kerala against the said judgment of the Sessions Court for not awarding capital punishment to the accused in the said case. 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 coming to the conclusion that the offence committed by the appellant deserved nothing short of capital punishment to meet the ends of justice. Accordingly, it enhanced the sentence from life imprisonment to death sentence. The appellant has preferred the abovesaid appeals against the said judgment from jail. Mr. KH. Nobin Singh, learned Advocate, has appeared as an amicus curiae while the State is represented by Mr. A. S. Nambiar, learned Senior Counsel and Mr. Gracious Kuriakose, learned Advocate.
(2.) The prosecution case as presented before the trial Court 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. 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 notes 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 collected. It is the further case of the prosecution that Beeran (PW-17), who happened to pass by the house of Johnny at about that time, came to notice the flames of fire emanating from the said house, hence, ran to a nearby night shop situated at Thadiyampadu junction and informed Ismail (PW-1) and some other head-load workers who were with PW-1 and brought them to the house of Johnny. It is further stated that on breaking open the front door by these people, they noticed a young girl who was later identified as Rani, lying and moaning but before any help could be rendered to her, the roof of the house fell on her and their efforts to save her failed. It is further stated that when PW-7 Muralidharan S. I. of police arrived at the spot, the house was completely burnt and he with the help of the people present including the fire force personnel, extricated the completely charred bodies of the abovesaid 5 victims from the burnt debris. PW-7 then recorded the statement of PW-1 which is marked as Ex. P-1, the first information. Based on the said information, Crime No. 151/88 was registered at Idukki Police Station vide Ex. P-7. It is stated that PW-13, Thulasidas conducted the further investigation and held inquest on the dead bodies as per Ex. MO-11 as also the spot Mahazar. On his request a team of doctors led by the District Medical Officer arrived at the scene and conducted the post-mortem. The report of the said post-mortem signed by one Dr. Dias was marked as Ex. P-9 series. 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. 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. Based on his report the case was closed as deaths due to accident.
(3.) 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 country-made revolver (MO-13) and under a Mahazar Ex. 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.;