Decided on March 29,1974

Kesavan Gurudasan Appellant
KERALA STATE Respondents


V.P.GOPALAN NAMBIYAR,J. - (1.) THIRTEEN accused were tried before the Sessions Judge of Trivandrum in Sessions Case No.91 of 1972,of offence punishable under sections 143,147,148 149,323,324,341,302,120 -B,114 and 34 of the I.P.C.The 1st accused was found guilty under section 302 and sentenced to undergo imprisonment for life;the 2nd accused was convicted under section 302,read with section 109 and sentenced to undergo imprisonment for life;the 6th accused was found guilty under sections 323 and 324 for causing hurt,( and for hurting)with a dangerous weapon(M.O.1)to P.W.1,and also for causing hurt to the deceased Gopalakrishna Kurup and sentenced to undergo simple imprisonment for two months,under each of the counts under section 323,and to simple imprisonment for six months under section 324,the sentences to run con­currently;the 7th accused was convicted under section 323 of causing hurt to deceased Gopalakrishna Kurup and also under section 323 read with section 34,for causing hurt along with accused 10,11,12 and 13 to P.W.1,and sentenced to rigorous imprisonment for two months,under each count,the sentences to run concurrently;the 8th and 9th accused were found guilty under section 324 and convic­ted and sentenced to undergo simple imprisonment for four months each;the 10th and 11th,12th and 13th accused were each found guilty under section 323,read with section 34 for having,along with the 7th accused,caused hurt to P.W.1 and were convicted and sentenced to undergo simple imprisonment for two months,each.Accused 3 to 5 were found not guilty and were acquitted.Charges of conspi­racy,unlawful assembly,etc.viz.those other than what are referred to above,were found not proved.Criminal Appeal No.314 of 1973 is by the 1st accused;Criminal Appeal No.272 of 1973 is by the 2nd accused;Criminal Appeal No.286 of 1973 is by accused,8,9,11 and 13;Criminal Appeal No.301 of 1973 is by accused 7 and 10;Criminal Appeal No.414 of 1973 is by the State against the acquittal of accused 3 to 5,and against the acquittal in re­gard to the charges other than those found proved.
(2.) THE relationship between the several accused,as it has come out in evidence is as follows:A -1 is A -4's employee(for plucking cocoanuts ),A2 is A4's husband's brother's son.A13 is the brother of A4's husband.A5 is the brother -in -law of A2.A11 and A13 are close friends of A2.A3 and A4,A6,A7 and A9 are brothers.A3;A8 and A10 are cousins,inter se and also of A6,A7 and A 9. The deceased Gopalakrishna Kurup was a servant of the 4th accused,Thankamma.Thankamma's husband,Raghavan,is in Singapore,well -placed and affluent.While the deceased was a servant of the 4th accused,some time in 1964,there was a theft of about Rs.18,000 from the house of the 4th accused for which the deceased was convicted.There was also a case about the same time against the 4th accused,and her karyastha,the 2nd accused,for violation of the Foreign Exchange Regulation,on information given to the Enforcement Officer,Enforcement Directorate,Trivandrum(P.W.12 ).P.W.12 would swear that show cause memo for violation of the Foreign Exchange Regu­lations had been issued,against A2,A4 and A4's husband,Raghavan,even in 1971.In Ext.P -60 petition dated 28th August 1971,submitted by the deceased to P.W.32,the Sub Inspector of Police,Varkala,he complained that the 2nd accused and another were attempting to kill him.Ext.P -59 dated 10th September 1971 is a petition addressed by the 4th accused's husband to the Chief Minister,express­ing that he apprehended danger to his life and to those of his wife and children from the activities of the deceased.The backdrop of enmity and strained feelings as between the 2nd and 4th accused on the one hand,and the deceased on the other,is thus fairly well -established.
(3.) WHILE matters stood thus,the Young Farmers 'Club of Elakamon,in Varkala,where the 4th accused was residing,of which P.W.23 was the President,decided to celebrate the Onam festival in 1971 and to stage a drama 'Agni Pralayam 'in commemoration of the event.The deceased was a prominent member of the organisation.M.O.9 is a copy of the book,containing the drama chosen for the occasion.The leading role in the drama was the heroine,Philomena,portrayed as leading a disreputable life by running night clubs,committing loot and murder,and indulging in other ways of earning "black money " ;.The 4th accused appears to have felt that the cap assigned to Philomena's role might fit her,and that the drama was meant to hold up her ways and habits of life to contempt and ridicule.She and the 2nd accused wanted to prevent the drama being staged,and to book those who organised the same.There is some evidence that the organisers of the drama were warned that the staging of the same,might lead to trouble.The drama,fixed originally for 30th September 1971,could not be staged that day,on account of rain and failure of current.It was postponed to the next day,1st October 1971,and commenced at about 9 the presence of a fairly large gathering.According to the prosecution,that morning a conspiracy was hatched bet­ween accused 2 to 5,to prevent the drama being staged and to murder the deceased.All the accused were present at the place where the drama was to be staged,in pursuance of the conspiracy.The 1st accused was fixed as a hireling to do the deed,and was given M.O.6,the dagger,by the 2nd accused.Ext.P -26 plan of the scene of occurrence,gives a rough indication,of the place and its surroundings.At about 11.30 p.m.the 4th accused's lorry 'Shanti ' ;,KLV.4971 driven by P.W.4,came along from the west,and stopped in front of the stage with head -lights flashed on to the stage.P.W.1 who was watching the drama asked P.W.4,to put out the head -light of the lorry.The 6th accused who was inside the lorry remonstrated,and a quarrel ensued between the 6th accused and P.W.1,in the course of which P.W.1 was slapped on cheek by the 6th accused.He retaliated.The 6th accused thereupon took out a knife M.O.1,from his loins and stabbed P.W.1 on the eyebrow which was warded off by him,with a firewood stick picked up from a neighbouring place.Both the knife and the stick fell down on the ground(The knife is stated to have been picked up by P.W.8 and produced before the police ).Immediately A7,and A10 to A13 rushed towards P.W.1 and fisted him on his back and chest.P.W.1 retreated towards the betel shop of P.W.9,where A1 to A3 were standing.P.W.1 fell down,and A8 hit him with an iron rod M.O.2 and A 9 with a tyre lever M.O.3.While P.W.1,was being thus assaulted,the deceased rushed towards him for help and was belabou­red by accused 6 and 7.As a result of the beating and belabouring the deceased fell on his face by the side of a gutter indicated in the plan.As he attempted to rise up on his knees and elbows,the 2nd accused shouted to the 1st accused:stab  Malayalam( «a#oro)S3 ecuey;

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