- (1.) The appellant along with others was put on trial for offences under Section 302 read with S. 149, 148, 323 of the Penal Code on the charge of committing the murder of Moideen Kutty (hereinafter referred to as the deceased). The trial court on consideration of the materials on record came to the conclusion that the charges levelledagainst the accused persons have not been established, beyond all reasonable doubt and on that finding acquitted the appellant as well as others. On appeal being filed on behalf of the State of Kerala the High court convicted the appellant under Section 302 of the Penal Code and sentenced him to undergo rigorous imprisonment for life. So far another accused Alavi who had been acquitted by the trial court was also convicted by the High court under Section 323 of the Penal Code and sentenced to pay a fine of Rs. 250. 00 and in default thereof to suffer simple imprisonment for a term of one month. The acquittal of other accused persons was affirmed by the High court by dismissal of the appeal against them.
(2.) The case of the prosecution is that on 16/09/1980 Mammed Kutty at 6. 00 a. m. in the morning pelted stones at the house of the deceased. At about 12. 00 in the noon while Mammed Kutty and his brother Abdulla Kutty were passing in front of the house of the deceased, a protest was made by the deceased in respect of the morning incident. They denied that any stone had been pelted by them. It is the further case of the prosecution that at about 2 p. m. while the deceased was sitting with his wife (Public Witness 4 and others on the verandah of his house, five persons including the appellant came to his courtyard and challenged him to come out, if he wanted to beat aforesaid Mammed Kutty and Abdulla. The deceased stepped out into his courtyard and asked the accused persons not to create a scene. At this the appellant and the other accused (since acquitted) gave some blows to the deceased on his hand. Thereafter the deceased raised his hand to give a blow to the appellant. At this very moment, the appellant took out a dagger from his waist and gave an injury on the upper part of the chest of the deceased near the left shoulder and above the armpit. The deceased ran towards the house of Public Witness 1 and fell on the verandah. Thereafter the accused persons escaped. The victim was removed to the Medical Hospital, Calicut, where he was examined by Public Witness 9. But soon thereafter he expired. The First Information Report was lodged at 7.15 p. m. After investigation the charge-sheet was submitted against five accused persons.
(3.) At the trial prosecution examined four eyewitnesses, Public Witness 1 to Public Witness 4. The doctor who held the post-mortem examination was examined as Public Witness 8. He found only one incised penetrating wound vertically placed on the front of left shoulder above the left armpit "tailing 6 cm. in length running downwards from the lower sharp end". According to his opinion, "the man died because the artery was cut. . This injury became dangerous only because it cut the artery. . " In the cross-examination Public Witness 8 stated that it was impossible to cause an injury like one which was found on the person of the victim by the assailant standing in front of the victim. He also stated that the tailing of the injury show that either the knife was dragged after stabbing or that the injury was caused during thecourse of the struggle. According to him, if the accused had given a direct blow, as is normally done, there would not have been the tailing of the injury.;