Kerala High Court
K.V. Chacko vs State Of Kerala on 28 August, 2000
Equivalent citations: 2001CRILJ1179
JUDGMENT Narayana Kurup, J.
1. These appeals arise out of the judgment of the Sessions Court, Kottayam, in Sessions Case No. 60 of 1993 dated 29-12-1997 by which the accused was found guilty of offences punishable under Sections 449, 302, 397 and 201, I.P.C. and sentenced him to undergo imprisonment for various terms including imprisonment for life under Section 302, I.P.C.
2. The prosecution case in brief is that on the wee hours of 6-8-1988 at about 3 a.m. the accused a master criminal, notoriously known as 'Ripper' Chacko trespassed into the Kollammattel house in Thadiyampadu, Idukki District, through an opening made near the kitchen door of the house; got access to the bed room where the entire family consisting of Johny, his wife Mariakutty, daughters Rani (15) and Hony (11) and son Sony (9) were sleeping; hit at their heads with the butt of M.O. 12 axe causing grievous injury; removed the nighty of the girl Rani; gagged her mouth by inserting a portion of her own nighty and thereafter removed a gold chain of one sovereign and other ear wear of half sovereign from the deceased Rani; ear ring of 2 grams from Hony; took away currency notes of 60 rupees which was inside the drawer of the table in the house as also M.O. 13 revolver of Johny loaded with M.O. 14 cartridges and after completing the theft pured diesel from cans which were available within the house (deceased Johny owned a mini lorry which accounts for the possession of diesel) set fire to it and got out through the very same opening through which he had entered it and escaped. As a result of this carnage all the five inmates of the house were charred to death. P.W. 17 who is a butcher by calling and who happened to see the house on fire while returning after slaughter gave Ext. PI F.I. Statement to P.W. 7 based on which Crime No. 151 of 1988 of Idukki Police Station was registered vide Ext. P7 F.I.R. Though the case was investigated nothing turned out suggestive of murder and the matter was ultimately referred as a fire accident. Immediately after the incident on 6-8-1988, the accused was arrested by P.W. 28, Head Constable attached to Rajakkad Police Station on 7-8-1988 at about 10.30 p.m. at Kunjithanni in connection with Rajakkad Police Station Crime No. 81 of 1988 and C.C.No. 224 of 1987 of J.F.C.M., Moovattupuzha. Though initially the accused resisted by show of force and threatened P.W. 28 and his party with M:O. 13 loaded revolver which was in his possession, he was ultimately overpowered by the police. After the arrest, M.O. 13 revolver with four rounds of cartridges loaded into it and currency worth Rs. 1,500/- and a suit case and cloth contained in it were seized under Ext. P18 mahazar. The accused was prosecuted before the J.F.C.M. Adimaly in respect of this incident for offences under Sections 332, 324, 506, IPC and under Section 25(1)(a) of the Indian Arms Act, which, however, ended in Ext. XII judgment of acquittal dated 17-9-1990 in C.C. No. 239 of 1989. In the absence of any clue or suspicion at that point of time, namely on 7-8-1988, the police did not pursue the matter against the accused under Section 302, IPC. However, after about 4 years, while investigating another case P.W. 43, Detective Inspector suspected that the accused was involved in certain other cases which remained undetected for long time. He filed Ext. P31 affidavit before the J.F.C.M. Court, Chalakudy, who had kept the present accused in judicial custody there in connection with Crime 171 of 1991 under Sections 457, 380 and 461, IPC of Koratty Police Station and got him into police custody for the period from 4-5-1992 to 11-5-1992 as per Ext. P30 order. The accused was brought down to Kottayam and upon continuous interrogation on 10-5-1992 he confessed his involvement not only in this case, but also in 4 other cases. He was produced back before the J.F.C.M. Court, Chalakudy, on 11-5-1992, but P.W. 45 who was the Superintendent of Police, Crime Branch filed another affidavit on 11-5-1992 before the Court and got the accused again into custody pursuant to Ext. P32 order dated 11-5-1992 for 15 days from 11-5-1992 to 25-5-1992. Based on Ext. P13(a) information furnished by the accused while in police custody M.O. 12 axe was recovered from within a well near the seen of occurrence on 21 -5-1992 as per Ext. P13 mahazar. Learning about the injuries caused to the deceased persons P.W. 45 filed a report before P.W. 30 Sub Divisional Magistrate and exhumed the bodies on 9-6-1992. After inquest as borne out by Ext. P19 series the bodies were subjected to fresh post-mortem examination by P.W. 39 and P.W. 40 who issued Ext. P24 to P26 certificates. After completing investigation charge was laid before the J.F.C.M. Court, Idukki, by P.W. 45 Superintendent of Police. The case was committed to the Court of Session, Thodupuzha, from where it was transferred to the Court of Session, Kottayam, as per the order of this Court in Cri. M.C. No. 1238 of 1993 dated 30-1-1993 along with few other cases involving the very same accused. After preliminary hearing charge under Sections 449, 397,461, 201 and 302, IPC were framed and read over to the accused. The accused denied the charge and was thereupon put on trial. Before the Sessions Court altogether 45 witnesses were examined and Exts. P1 to P44 as well as M.O.I to M.O. 14 were marked on the side of the prosecution. Exts. XI to XII as well as C1 and C2 were also marked in the case. On the side of the defence Exts. Dl to D2(b) were marked. While examining under Section 313, Cr.P.C. the accused set up the plea of alibi which, however, boomeranged. The Sessions Court on an appraisal of the evidence on record found the accused guilty of the offences punishable under Sections 449, 302, 397, and 201, IPC and convicted him thereunder and sentenced him to undergo imprisonment for life under Section 302, IPC, rigorous imprisonment for 7 years under Section 397 read with Section 392, IPC, rigorous imprisonment for 7 years and a fine of Rs. 10,000/- under Section 449, IPC and rigorous imprisonment for 5 years and a fine of Rs. 10,000/- under Section 201, IPC. Cri. Appeal No. 642 of 1998 is preferred by the State seeking enhancement of sentence into one of death and Cri. Appeal No. 105 of 1998 is preferred by the accused for reversing the order of conviction and praying for acquittal.
3. We heard Mr. K.S. Ajayaghosh (State Brief) who ably and meticulously argued the case of the accused in both the appeals as also Mr. Grashious Kuriakose, Public Prosecutor, who presented the case of the prosecution with exceptional skill and dexterity. Counsel for the accused was specially heard on the question of enhancement of sentence as well. We have also adverted to the contentions raised by the accused in his "requisition to re-consider the memorandum of Criminal Appeal No. 642 of 1998", being the State appeal for enhancement of sentence.
4. The entire case rests on circumstantial evidence. An important piece of circumstantial evidence is the presence of the accused in the locality immediately before and after the incident which is established by the convincing evidence of P.W. 16, P.W. 18 and P.W. 27. P.W. 16 is an old friend of deceased Johny. P.W. 16 gave evidence that on the night of 5-8-1988, he and the deceased consumed liquor from an arrack shop located near to the scene of occurrence. While they were consuming liquor, the accused and P.W. 18 also came to the arrack shop to consume liquor. P.W. 16 has deposed that the accused is known to him for the last 15 years as a resident and frequent visitor of that locality and the arrack shop in particular where both of them were regulars. P.W. 16 had therefore no difficulty in identifying the accused. According to P.W. 16, the deceased had with him a packet of biscuits meant to be carried home for his children. P.W. 18 was a headload worker who had worked along with the accused at Idukki 10 to 20 years ago. Having seen the accused at Thadiampad, he wanted to celebrate the fellowship with a drink at the arrack shop. According to P.W. 18, when he and the accused consumed arrack P.W. 16 and deceased Johny were also there consuming arrack. The evidence of P.W. 16 and P.W. 18 prove beyond doubt that the accused was present in the locality on the night of 5-8-1988, immediately before the incident on the early hours of 6-8-1988. As already noticed, the deceased had with him a packet of biscuits which according to the prosecution resembled a bundle of currency notes and which was noticed by the accused. It was known to the people of the locality that the deceased had sold his mini lorry on 5-7-1988 after receiving a sum of Rs. 25,000/- and he was expected to receive the balance of Rs. 22,000/- on 5-8-1988. This is borne out from the evidence of P.W. 12 vehicle broker who arranged the sale of the mini lorry owned by deceased Johny. Therefore, it is quite probable that on seeing deceased Johny at the arrack shop with the packet resembling currency notes the accused might have thought that it was currency notes which was carried by deceased Johny and the possibility of the accused deciding to enter the house of deceased Johny by night to commit theft of money and other valuables cannot, therefore, be ruled out. Having perused the evidence of P.W. 16 and P.W. 18 we find nothing there to discredit their version. P.W. 16 and P.W. 18 have no axe to grind against the accused. Therefore, their version regarding the presence of the accused at Thadiyampad on the night of 5-8-1988 can be safely relied upon to enter a finding that the accused was present in the locality immediately before the incident. That takes us to the next question as to whether the accused was present in the locality immediately after the incident. On this question there is the crucial evidence of P.W. 27 who is none other than the aunt of the accused himself and who is residing at a place called Chelachuvadu, just "3 - 4 miles" away from Thadiyampad. P.W. 27 has deposed that the accused used to go over to her house at Chelachuvadu and to stay there frequently. According to her, on 6-8-1988 the accused reached her house at 8.30 a.m. and left a little while thereafter only to return later on in the night on the same day at 8. The next day (7-8-1988) the accused left the house of P.W. 27 in the morning and returned again at about 8 in the night. Being a close relative of the accused, in our considered opinion, she will be the last person to falsely implicate the accused in a serious offence like murder unless it is true. Her evidence unmistakably shows that after the incident the accused reached her house, spent some time there, then left the place and returned on the night of 6-8-1988 and 7-8-1988. We find the evidence of P.W. 27 totally reliable to come to the conclusion that the accused was present in the locality immediately after the incident. The evidence of P.W. 27 regarding the visit of the accused on the night is corroborated by the testimony of P.W. 20, the taxi driver who deposed that the accused after hiring his car at Munnar at 5 p.m. on 7-8-1988 by falsely giving his name as Vijayan and misrepresenting that he is a forest official took him to Chelachuvadu - where P.W. 27 resides - on the night of 7-8-1988. The statement of P.W. 20 that he along with the accused and one Prince Robin reached Adimali at about 9.30 p.m. from Chelachuvadu makes the version of P.W. 27 that the accused left her house by 8 p.m. on 7-8- 1988 absolutely truthful. P.W. 20 has also deposed that when the accused returned to the car he had with him a suit case.
5. Since the case of the prosecution is based on the fact that the accused hit deceased Johny and his wife Mariakutty with the blunt portion of M.O. 12 axe, the identification and recovery of the same assumes importance. It has come out in evidence that M.O. 12 axe belonged to P.W. 15 who is the immediate neighbour of deceased Johny. According to P.W. 15, who is a housewife, she has been using M.O. 12 axe for a period of 20 years right from the day when she entered the matrimonial home after her marriage. It is a matter of common knowledge that a person has an uncanny sense of identifying his or her own belongings, particularly articles of routine personal use. Therefore, there is nothing unnatural in P.W. 15 identifying M.O. 12 axe as owned by her. According to P.W. 15, M.O. 12 axe was mising from her house from 6-8-1988. The medical evidence adduced in the case supports the prosecution version that the accused hit deceased Jhony and Mariakutty on their heads with M.O. 12 axe. P.W. 39 and P.W. 40 are the doctors who performed postmortem after exhumation of the dead bodies of Johny, his wife Mariakutty and daughter Rani. While P.W. 39 conducted post-mortem on Johny and Mariakutty, P.W. 40 performed the post-mortem on Rani. P.W. 39 has noted multiple fractures on the skull of deceased Johny with depressed fractures on either side - vide Ext. P24 - post-mortem certificate of Johny. According to P.W. 39, fractures noted as Item No. 24 in Ext. P24 could be caused by hitting with the blunt portion of M.O. 12. P.W. 39 also noted fractures on the skull of Mariakutty as per Ext. P25 post-mortem certificate. According to him, the skull fractures rioted in Ext. P25 could be caused by hitting with the blunt portion of M.O. 12. P.W. 40, who conducted autopsy on Rani after exhumation issued Ext. P26 certificate. P.W. 40 was shown Ext. P9(c), the first post-mortem certificate relating to Rani. In Ext. P9(c) the skull of Rani was found burnt and cracked and the brain exposed and shrunken. According to P.W. 40, the crack on the skull of Rani could be the result of 'burnt rupture'. Of course, in Ext. P9(c) there is no mention of any soot or carbon particles, having entered the trachea of Rani. This has been explained away by P.W. 40 as the thrusting of cloth inside the mouth of Rani might have blocked the tracheal passage preventing the entry of soot and carbon particles. According to P.W. 40, packing the mouth of Rani with cloth could have caused asphyxia as air passage was completely blocked and 'that is also a possible cause of death'. The presence of cloth in the mouth of Rani was noticed by P.W. 1, P.W. 17andP.W. 19 who reached the burning house of Johny immediately after the occurrence. P.W. 1, P.W. 17 and P.W. 19 found Rani naked (sic) and cloth protruding from her mouth. P.W. 1 is more specific when he states that legs of Rani were wide apart. According to P.W. 17 and P.W. 19 before they could rescue Rani, who according to P.W. 19 was muttering "ye ye", the burning roof of the house collapsed and fell on her thereby putting a finale to the gruesome tragedy. P.W. 6, the brother of the deceased who reached the scene by about 7 a.m. was permitted by the Police to enter the house. He noticed Rani stark naked with cloth stuffed into her mouth. He also noticed clotted blood on the back of the head of Johny. The ocular testimony of P.Ws. 1,6, 17 and 19 as supported by the medical evidence leads only to one conclusion, viz. that Rani died due to burns and asphyxia. In the case of deceased Johny and his wife Mariakutty P.W. 39 found soot and carbon particles in the trachea and bronchia up to the second division showing that these two persons were alive when the house was burnt and they had inhaled the soot emanating from the fire in the house. Though these witnesses were cross-examined nothing has been elicited to discredit their testimony. We have therefore no hesitation in accepting their testimony as proof of the fact that the accused inflicted head injuries on deceased Johny and his wife Mariakutty with the blunt portion of M.O. 12 axe and stuffed the mouth of Rani with cloth resulting in asphyxia and death and also he set fire to the house resulting in soot and carbon particles being inhaled by deceased Johny and Mariakutty eventually leading to the death of all the three along with two other small children. While death of Johny and Mariakutty can be attributed to fracture skull as a result of blow with the blunt portion of M.O. 12 axe and burns, death of Rani was the direct result of asphyxia coupled with burns. This conclusion of ours is amply supported by the eye witness account of P.W. 1, P.W. 17 and P.W. 19 and the medical evidence of P.W. 39 and P.W. 40 and P.W. 9 the Police Surgeon who gave a definite opinion as to the cause of death based on Ext. P8 series (Chemical examination report of victims) and Ext. P9 series (Post-mortem certificates (5)) that all the deaths were due to deep ante-mortem burns (3rd degree burns involving muscles and bones), coupled with Exts. P24, P25, P26, Ext. P9(c) and Ext. P10, Chemical Analysis Report.
6. After the arrest, the accused made a statement to P.W. 45, the Supdt. of Police. The statement Ext. P13(a) to the extent it is admissible under Section 27 of the Evidence Act was to the effect that he would identify the M.O. 12 axe which is lying immersed in the well at the house of the deceased at Thadiyampad. In Ext. P13(a) the accused has also stated that he will show the place where he has left the screw driver and also the shop of one Ponnappan at Munnar who had purchased the gold ornaments from him. Recovery of M.O. 12 axe pursuant to Ext. P13(a) confession statement made by the accused to P.W. 45 as per Ext. P13 mahazar as proved by P.W. 22 who had witnessed the recovery from within the well of deceased Johny on 21-5-1992 adds further credence to the prosecution version. Ext. P27 F.S.L. report of axe shows that traces of blood was detected on M.O. 12. The presence of blood on M.O. 12 axe was detected by subjecting M.O. 12 to Bensidine test which was confirmed by spectroscopic test (vide Ext. P27 F.S.L. report). However, the blood on M.O. 12 axe was found to be insufficient for determining its origin and group. It is of course true that the serologist could not determine the origin and group of the blood found on M.O. 12 axe. But considering the fact that M.O. 12 axe was lying immersed in water for more than four years, the mere circumstances that the serologist could not determine the origin and group of the blood found on M.O. 12 axe does not in any way affect the substratum of the prosecution case that the accused hit the victims on their heads with the blunt portion of M.O. 12 axe. Over the years the blood contained on M.O. 12 might have undergone decomposition and disintegration rendering the remaining quantity quite insufficient for determining the origin and group of blood. Therefore, the insufficiency of blood on M.O. 12 axe as a reason for not determining its origin and group is of no assistance to the accused. In this connection we may again usefully refer to the evidence of P.W. 6 who is none other than the brother of deceased Johny who reached the scene of occurrence at 7 a.m. on 6-8-1988. P.W. 6 has deposed that he has found clotted blood at the back of Johny's head. In the face of the uncontroverted testimony of P.W. 6 regarding the presence of clotted blood on the back of Johny's head no significance can be attached to the non-detection and non-determination of the origin and group of blood by the serologist on M.O. 12.
7. Learned counsel for the defence would contend that the recoveries were conducted after 4 years of incident, and therefore, no reliance can be attached to the said recovery. Having bestowed our anxious consideration to the aforesaid contention we are of the opinion that the same is not liable to be accepted. In this connection it has to be noted that eversince the date of incident on 6-8-1988, M.O. 12 was lying submerged in the well of the deceased as already noticed. The accused has no case that anybody else knew about the existence of M.O. 12 weapon in the well from which it was recovered. It was on the basis of information furnished by the accused that M.O. 12 weapon was recovered. Section 302 investigation in the case commenced only in the year 1992, when the accused was arrested in connection with another case. Therefore, on the facts of this case the delay in recovering M.O. 12 is of no moment at all. Counsel also pointed out that though the accused had given Ext. P13(a) information to the police about M.O. 12 on 10-5-1992, the recovery was effected only on 21-5-1992 and the delay in effecting the recovery is fatal to the prosecution. On the facts and circumstances disclosed in the present case, we find no merit in this contention. It is pertinent to point out in this context that though the accused had given Ext. P 13(a) information on 10-5-1992, the recovery could not be effected immediately, since the accused was remanded to police custody from J.F.C.M. Court, Chalakudy (about 100 km. away from the place of occurrence) only up to 11-5-1992. Hence, after recording the confession of the accused on 10-5-1992 he had to be taken back to the J.F.C.M. Court, Chalakudy, before effecting recovery of M.O. 12. Again, the custody of the accused was obtained from J.F.C.M. Court, Chalakudy, and immediately thereafter on 21-5-1992 recovery of M.O. 12 was effected. The prosecution has brought to our notice that simultaneously investigation of four other murder cases in which the accused herein figured as the accused was going on. Recovery of M.Os. involved in four other cases also had to be effected for which the presence of the accused was necessary. The details of the other cases in which the very same person figured as the accused are as follows :
1. Crime No. 484/88 of Pala Police Station corresponding to Sessions Case No. 77/93 of the Sessions Court, Kottayam.
2. Crime No. 278/88 of Ettumanoor Police Station corresponding- to Sessions Case No. 29/93 of Sessions Court, Kottayam.
3. Crime No. 36/88 of Ettumanoor Police Station corresponding to Sessions Case No. 26/93 of Sessions Court, Kottayam.
4. Crime No. 61/89 of Idukki Police Station corresponding to Sessions Case No. 47/93.
All the above cases involved murder and robbery. For the recovery of the material objects involved in those cases the accused had to be taken to various places in the State of Tamil Nadu and Kerala. The recovery of the material objects involved in Crime No. 484/88 of Pala Police Station was effected from Coimbatore on 17-5-1992. Recovery of the material objects involved in Crime Nos. 278/88 and 36/88 of Ettumanoor Police Station was effected from Munnar on 19-5-1992. It was only thereafter the accused could be taken to Thadiyampad for effecting the recovery of M.O. 12 axe in the present case on 21-5-1992. Thus it can be seen that there was no wilful or intentional delay in effecting the recovery of M.O. 12 axe in the present case. The evidence of P.W. 43 (Detective Inspector) and P.W. 45 (Supdt. of Police) would clearly show that there was absolutely no delay or laches in effecting the recovery of M.O. 12 and the time gap in effecting the recovery was occasioned in the circumstances already noticed. The contention of the defence based on delay in effecting recovery after the accused had given the confession statement is accordingly rejected. 8. The evidence of P.W. 22 who witnessed the recovery of M.O. 12 axe is also challenged by the accused, as according to him, the version of the person who got into the well and retrieved the axe alone will reflect the correct position. We are afraid we cannot accept this contention. It cannot be laid down as a matter of law or practice that where recovery had to be effected from a particular place on the basis of information furnished by an accused a specific person should be examined as a witness to prove the recovery; in the present case the person who got into the well and retrieved M.O. 12 axe. On the contrary, the prosecution will be well within its right to prove the recovery by examining any person who was present at the scene of recovery and who witnessed the same. From the evidence of P.W. 22 it was clear that he happened to be at the site of recovery when the axe was retrieved from the well. According to P.W. 22, it was one George (C.W. 37) who entered the well and took out the axe. The recovery could be assailed on the ground that the witness who witnessed the recovery was connected with the deceased or with his business and therefore he was not independent or impartial witness. No such case is pleaded here. The information given by the accused pursuant to which recovery was effected is admissible under Section 27 of the Evidence Act. The concealment of a fact which is not known to the police is what is discovered by the information given by an accused and lends assurance that the information was true. What makes the information leading to the discovery admissible is the fact that neither the police nor anybody else did know about the existence of the object discovered until information was furnished by the accused. Section 27 of the Evidence Act is by way of a proviso to Section 25 and Section 20 thereof and a statement, even by way of confession, which distinctly relates to the fact discovered is admissible as evidence against the accused under the circumstances stated in Section 27. We find nothing in the evidence of P.W. 22 warranting rejection of his testimony and as a sequel the recovery as such. The evidence of P.W. 22 inspires confidence. Accordingly, we reject the submission of the defence and accept the recovery as a valid one. The position in this regard is too well settled to warrant citation of any authority. 9. The seizure of M.O. 13 revolver loaded with M.O. 14 catridges which belonged to deceased Johny from the person of the accused by P.W. 28 as per Ext. P-12 mahazar on the very next day of the incident is an incriminating circumstance pointing to the guilt of the accused. P.W. 28, the Head Constable who seized M.O. 13 revolver from the accused has deposed that the accused is closely known to him as K.D. of Rajakkad Police Station in which capacity he had to report to the Station every month. P.W. 28 also states that he had registered a crime against the accused as Crime No. 81/88 of Rajakkad Police Station and the fact that a warrant has been issued against the accused from the J.F.C.M. Court, Muvattupuzha in C.C. No. 224 of 1987 is known to him. It is in that context that on spotting the accused at Kunjithanni town that P.W. 28 attempted to arrest him which was resisted by the accused threatening P.W. 28 with M.O. 13 loaded revolver which was taken out by the accused from the suit case he was carrying and pointing the same at P.W. 28. However, P.W. 28 has deposed that he could overpower the accused and take him into custody followed by preparation of Ext. P-18 seizvire mahazar for M.O. 13 revolver and M.O. 14 catridges and cash of Rs. 1,500/-. The evidence of P.W. 24 A.S.I., Rajakkad Police Station corroborating the evidence of P.W. 28 and who registered a case against the accused with respect to the incident involving the accused and P.W. 28 as borne out by Ext. P-14 F.I.R. assumes importance in this regard. According to P.W. 24, P.W. 28 after overpowering and arresting the accused at Kunjithanni took him to Rajakkad Police Station immediately thereafter where he was lodged for the night. The seized articles including M.O. 13 revolver was also produced before P.W. 24 who in turn transmitted the same to J.F.C.M. Court, Adimali, on the very next day. Therefore, there can be no doubt regarding the factum of recovery of M.O. 13 from the person of the accused by P.W. 28 on the night of 7-8-1988. As regards the identity of M.O. 13 weapon as the one possessed by deceased Johny, it is established by clear, cogent and convincing evidence of P.W. 19 and P.W. 31. P.W. 19 who is a close acquaintance of the deceased for 10 to 15 years had occasion to see the deceased oiling M.O. 13 revolver during one of his visits to Johny. In his cross-examination to a specific question as to how he got an opportunity to see M.O. 13 weapon he has stated that he has seen M.O. 13 in the table drawer of the deceased when he opened the table drawer for effecting cash payment to him. Likewise, P.W. 31 who is the sister-inlaw of the deceased (wife's sister) has also deposed that deceased Johny was in possession of a revolver and she has also identified the same as M.O. 13. In her evidence she has stated that she stayed in the house of Johny for a period of one week before her marriage. According to her, her last stay there was during December, 1987. She distinctly remembers the ornaments like ear-studs worn by her sister-wife of Johny-and her daughters Rani and Hony. In her deposition she has even given the design and description of ornaments worn by the victims. From the nature of the minute and precise details with which she has spoken about the design and description of ornaments worn by her sister and her daughters it must be held that P.W. 31 has sharp memory and excellent powers of observation. In the aforesaid view her evidence inspires confidence in us. Therefore, her identification of M.O. 13 revolver as the one possessed by Johny is only to be accepted. The evidence of P.W. 19 and P.W. 31 has proved beyond doubt that M.O. 13as seized by P.W. 28 on 7-8-1988 from the person of the accused was the one possessed by deceased Johny. Recent and unexplained possession of stolen articles can be taken to be presumptive evidence of the charges of murder as well. vide Baijur v. State of Madhya Pradesh, AIR 1978 SC 522 : (1978 Cri LJ 646). Applying the law laid down by the Supreme Court to the facts of the present case, it has to be held that in the absence of any plausible explanation for lawful possession of M.O. 13 revolver of the deceased by the accused immediately after the gruesome murder it has perforce to be found that the accused not only committed murder but also robbery of M.O. 13 forming part of one transaction. After the acquittal of the accused as per Ext. XII judgment M.O. 13 and M.O. 14 were sent to the Armed Reserve Camp, Idukki, for safe custody through the District Collector, Idukki. P.W. 23 who was the U.D. Clerk of J.F.C.M. Court, Adimali, has been examined to prove that M.O. 13 and M.O. 14 were sent to District Collector, Idukki, after the disposal of the case against the accused. The evidence of P.W. 21, Clerk in ldukki Collectorate, would show that M.O. 13 and M.O. 14 as received from J.F.C.M. Court, Adimali, were forwarded to Armed Reserve Camp, Idukki, for safe custody. The evidence of P.W. 26, Quarter Master of A.R. Camp, Idukki, would prove that he handed over M.O. 13 and M.O. 14 which were kept in safe custody to C.I. of Police, Crime Branch, in July, 1992. The evidence of P.W. 24 and the evidence of P.W. 25, S.I. of Police, Vellathooval Police Station, would show that the accused was prosecuted for offences under Section 25(1)(a) of the Indian Arms Act and Sections 332, 324 and 506 of the Indian Penal Code before the J.F.C.M. Court, Adimali. The evidence of P.W. 21, P.W. 23, P.W. 24, P.W. 25, P.W. 26 and P.W. 28 has established that M.O. 13 has remained in safe custody since its seizure by P.W. 28 on the night of 7-8-1988 from the person of the accused at Kunjithanni. The oral evidence as aforesaid is supported by Ext. P-14 series (F.I.R. in Crime No. 90/88 of Rajakkad Police Station which was transferred to Vellathooval Police Station and re-registered as Crime No. 82/88 of that station), Ext. P-15 charge-sheet in Crime No. 82/88 of Vellathooval Police Station based on which the accused was arraigned for trial before the J.F.C.M. Court, Adimali, in C.C. No. 239 of 1989 and Ext. P-37, certified copy of F.I.R. in Crime No. 82 of 1988 of Vellathooval Police Station. Accordingly, we hold that M.O. 13 and M.O. 14 seized by P.W. 28 at 10.30 p.m. on 7-8-1988 and thereafter kept in safe custody belonged to the deceased as identified by the clear, cogent and irrefutable evidence of P.W. 19 and P.W. 31 and other witnesses.
10. No doubt, counsel for the defence would contend that since by Ext. X-11 judgment the accused was acquitted in the Arms Case relating to the attempted assault and using of M.O. 13 weapon against P.W. 28 on 7-8-1988, the prosecution is estopped from using the recovery of M.O. 13 from the accused as an item of evidence against him. In our considered opinion the aforesaid argument based on the principle of 'issue estoppel' has no merit. It is no doubt true that as per Ext. X-11 judgment the accused was acquitted of all charges of attempting to assault P.W. 28 and his companion and also attempting to use M.O. 13 against them. But, in the present case the accused is not being prosecuted for either possessing or for using M.O. 13 as a weapon of offence. Therefore, the issue which arose in Ext. X-11 judgment does not arise for consideration in the present case. Here, the fact that M.O. 13 belonging to the deceased was seized from the person of the accused immediately after the incident, the very next day on 7-8-1988 by P.W. 28 alone is sought to be proved by adducing evidence. Since the factum of recovery of M.O. 13 along with M.O. 14 on 7-8-1988 from the person of the accused is proved beyond doubt by adducing cogent and convincing evidence as discussed above, we take it as a strong circumstance unerringly pointing to the guilt of the accused in the present case. We take note of the fact that even though the accused was chargesheeted (vide Ext. P-15) in Crime No. 82 of 1988 of Vellathooval Police Station, the case ultimately ended up in acquittal as the witnesses turned hostile. We can in this connection take note of the fact that the accused being a notorious criminal who has struck terror in the State, especially in Idukki District, no person will come forward to give evidence against him in a Court of law. Therefore, it was quite natural that the prosecution witnesses turned hostile before the Court. However, it appears to us that the learned Magistrate has not properly appreciated the evidence and sound reasoning is not given by the Magistrate for discarding the evidence of police officers regarding seizure of M.0. 13 from the accused. There is no rule of law which stipulates that the evidence given by a police officer has to be rejected simply for the reason that it is not corroborated by independent witnesses. Since we are not called upon to decide that question in the present proceedings we do not propose to make any further observation in that regard and leave the matter there. Reverting to the core question, we may observe that the prosecution has not attempted to adduce evidence to prove murder of the victims by the accused with M.O. 13 revolver. All that is sought to be proved is that the accused was in possession of M.O. 13 revolver as seized from him by P.W. 28 the very next day of the incident, viz. 7-8-1988. At any rate, there cannot be any legal bar in accepting that part of the evidence of P.W. 28 to show that the accused was in possession of M.O. 13 loaded revolver the day following the incident. In order to invoke the rule of 'issue estoppel' not only the parties in the two trials must be the same but also the factin-issue proved or not in the earlier trial must be identical with what is sought to be re-agitated in the subsequent trial. (Vide Ravinder Singh v. State of Haryana, AIR 1975 SC 856 : (1975 Cri LJ 765) para 19. Admittedly, the fact-in-issue in the earlier trial as borne out by Ext. X-11 judgment is quite different from the fact-in-issue arising in the present case. Whereas, in Ext. X-11 judgment the facts-in-issue were whether the accused voluntarily caused hurt to P.W. 1 (P.W. 28 herein) and P.W. 3 therein in preventing them from discharging their official duty and whether the accused possessed M.O. 13 revolver without any licence or authority as alleged by the prosecution, in the present case the question is whether M.O. 13 found in the person of the accused is the one stolen from the house of deceased Johny on the fateful day. The charges in Ext. X-11 judgment and the present case are totally different. Therefore, the principle of 'issue estoppel' cannot have any application in the instant case. Accordingly, we reject the submission of the counsel for the defence based on the principle of 'issue estoppel'.
11. Next, our task is to consider how far the accused has succeeded in establishing the plea of alibi set up by him in his desperate attempt to secure a judgment of acquittal. In his answers to questions put under Section 313, Cr.P.C. he has stated that as on 6-8-1988 he was not a free agent to commit the crime as he was taken into custody by Rajakkad Police on 5-8-1988 itself though he was produced before the Magistrate only on 8-8-1988. The occurrence in this case, according to the accused took place at a time when he was under police custody. Insofar as the day of arrest was recorded only on 7-8-1988, the specific case set up by the accused is that as a matter of fact he was not arrested by P.W. 28 on 7-8-1988, but he was arrested on 5-8-1988 itself. Having examined the aforesaid contention of the accused that on 6-8-1988 he was not a free person to commit the offence alleged against him we are of opinion that the accused has miserably failed to prove the same in the face of the clear, concrete and convincing evidence of his own aunt as P.W. 27 who has deposed that the accused used to go over to her house at Chelachuvadu and to stay there at times. According to her, on 4-8-1988 the accused reached the house and slept there. He left on 5-8-1988 stating that he was going to Idukki and did not return that night. On 6-8-1988 he returned to the house at 8.30 a.m. but left there in one hour. He returned again at 8 p.m. and slept there. On 7-8-1988 the accused went over to Adimali, came back at night and returned with a suit case that he had kept in the house earlier. This unchallenged evidence of P.W. 27 cuts at the very root of the plea of alibi set up by the accused. The evidence of P.W. 27 read along with the evidence of P.W. 16 (friend of deceased who deposed that he had consumed arrack with the deceased on the night of 5-8-1988 in the nearby arrack shop where the accused was also present), P.W. 18 (friend of accused who deposed that he consumed arrack in the company of the accused in the arrack shop on the night of 5-8-1988), P.W. 20 (taxi driver engaged by the accused on 7-8-1988), P.W. 24 (A.S.I.), P.W. 25 (S.I.) and P.W. 28 (H.C. who arrested the accused on 7-8-1988) would prove beyond any shadow of doubt that the accused was a free agent on 6-8-1988 and he was arrested by P.W. 28 only on the night of 7-8-1988. In this connection it is pertinent to note that the accused when produced before the J.F.C.M. Court, Adimali, pursuant to his arrest on 7-8-1988 by P.W. 28 had no complaint that he was arrested on 5-8-1988 itself. In this context the following observation made by a Special Bench of the Calcutta High Court in Sarat Chandra Dhupi v. Emperor, AIR 1934 Cal 719 (SB) could be reproduced with advantage :
Whenever a defence of alibi is set up and that defence utterly breaks down, it is a strong inference that if the prisoner was not in fact where he says he was, then, in all probability, he was where the prosecution say he was.
The aforesaid decision of the Special Bench of the Calcutta High Court has been followed in Mohinder Singh v. State of Punjab, 1971 Cri LJ 1764 (Punj and Har). It is by now well settled that a false plea of alibi set up by an accused is a strong incriminating circumstance against him. On the evidence adduced in this case we are of opinion that the plea of alibi set up by the accused has completely collapsed and broken down leading to the irresistible conclusion that the accused was present at the place of occurrence where the prosecution says he was. Accordingly, we reject the plea of alibi and hold that the accused was present at the scene of occurrence in the early hours of 6-8-1988.
12. Yet another objection raised by the counsel for the accused is that the 'further investigation' conducted by the Crime Branch without permission from the Court is illegal. We do not find any merit in this contention. In our considered opinion the objection raised regarding the so-called 'further investigation' conducted in the present case cannot stand the scrutiny of law for a moment. In this connection it is relevant to note that the earlier investigation in the case conducted by the local police was with respect to 'fire occurrence' and there was no investigation into Section 302 offence. When the offence under Section 302 was detected the Crime Branch had been entrusted to conduct a fresh investigation about the said offence. We do not find the said investigation as tainted by any illegality, statutory or otherwise. The Crime Branch of the State Police cannot be treated as a separate agency. It is part and parcel of the police establishment of the State coming under the direct supervision of the Director General of Police. The personnel of local police and Crime Branch are inter-transferable. The Crime Branch is constituted as a specialised wing of the police establishment for the purpose of investigating serious and outrageous crimes. In our considered opinion the investigation conducted by the Crime Branch cannot be termed as 'further investigation' under Section 173(8) of Cr.P.C. At the time when the Crime Branch was investigating the case the matter was not under cognizance of any Court and hence none of the decisions relied on by the learned counsel for the accused is applicable to the facts of the present case. The view we are taking is fortified by the decision of the Hon'ble Supreme Court in Ram Lal Narang v. State (Delhi Administration), AIR 1979 SC 1791 : (1979 Cri LJ 1346) wherein the Apex Court ruled that notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under the Code, the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. The Court went on to observe that neither Section 173 nor Section 190 of the Code says that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. According to the Court, practice, convenience and prepondrance of authority, permits repeated investigation on discovery of fresh facts. Thus, following the aforesaid decision of the Supreme Court we reject the contention advanced by the learned counsel for the accused and hold that the fresh investigation conducted by the Crime Branch does not suffer from any legal infirmity as alleged. The various decisions cited by learned counsel for the accused are clearly distinguishable on facts and will be of no assistance to him in furthering his case based on the aforesaid contention.
13. It was further contended by the counsel for the defence that bodies exhumed under Ext. P19, P19(a) and Ext. P-19(b) may not be that of the victims. We are not impressed by this argument. From a joint reading of the evidence of P.Ws. 30, 33, 35, 36, 39 and 40 we are convinced that there was no mistake made in locating the pits. P.W. 35 is a person who was present at the time of the original burial as also on Ext. P-19 date. P.W. 36 asserts that the three exhumed bodies were available, in the very same plastic bags in which the bodies were originally buried. He was the person who purchased and provided those bags at the time of the original burial. Therefore, there is no possibility of any mistake being made in the matter of identification of the exhumed bodies. Adverting to this fact the Sessions Judge observed that the oral evidence of the above witnesses can be safely accepted in the matter of identification of the three skeletons as that of Johny, Mariakutty and Rani especially when that fact is asserted by P.W. 32 who prepared the original pit for burying the coffins in 1988 as also exhumed those bodies in 1992. Therefore, we reject this contention as devoid of any merit. The accused has a further case that this is a case of suicide. We are not impressed by this argument. If it were a case of suicide there was no reason why there should be cleft in the southern wall as noticed by P.W. 7 and there is no reason why the almirah kept in the bedroom should be found opened as noticed by P.Ws. 6, 10, 11 and 13. The fact that M.O. 13 revolver and other valuables were missing from the house is also inconsistent with the theory of suicide. That the body of Rani was found in stark naked condition as spoken to by P.W. 6 and other witnesses speaks volumes against the suicide theory propounded by the accused. Accordingly, we reject the same as baseless. 14. In a case which rests solely on circumstantial evidence motive assumes importance. In our considered opinion the prosecution has succeeded in establishing adequate motive on the part of the accused by retrieving from his possession M.O. 13 revolver and M.O. 14 catridges possessed by deceased Johny and also a sum of Rupees 1,500/- in cash the very next day of the incident. There is evidence to show that immediately after the incident on 6-8-1988 the accused was leading a lavish life as borne out by the testimony of P.W. 20, the driver of the taxi car which was engaged by the accused for his peripatetic perambulations squandering money over taxi fare and by footing the hotel bill of others etc. This shows that the accused was in possession of cash the day following the incident. He has no explanation as to how he has acquired cash. Therefore, we are of opinion that the accused in all probability might have sold the gold ornaments stolen from the house of Johny and utilised the sale proceeds for leading a carefree life spending money according to his fancy. It is a fact that none of the ornaments which disappeared from the house of Johny on the night of occurrence could be traced out. P.W. 45, the Supdt. of Police has stated that earnest efforts were made in this regard through P.W. 43 and that all these failed in view of the fact that the attempt could be made only in the year 1992. The alleged receiver of the ornaments C.W. 36 (Ponnappan) could not be examined as he is no more. As the ornaments had changed hands it is difficult to retrieve them. Considering the inordinate delay that has taken place in investigating this crime not much significance can be attached over the failure on the part of the police in retrieving the gold ornaments stolen from the house of Johny. Merely for the reason that the prosecution failed to retrieve the ornaments it does not mean that the entire prosecution case has to be thrown over-board. The available evidence suggests that the motive of the accused was to commit theft. The evidence of P.W. 6, the brother of the deceased is to the effect that Mariakutty and her daughters were in the habit of wearing gold ornaments which are conspicuously absent when he saw the bodies of the victims at 7 a.m. on 6-8-1988. According to him, the steel almirah in Johny's bedroom was found opened. This would indicate sufficient motive on the part of the accused to commit theft of valuables from the house of deceased Johny. On the evidence thus disclosed we are satisfied that the prosecution has succeeded in establishing adequate motive on the part of the accused to commit the offence as alleged, viz. to commit theft of valuables including the contents of packet which Johny was carrying and which was believed by the accused to be currency notes of the sale proceeds of his mini lorry.
15. Thus, on the whole we are satisfied that the prosecution has cogently and firmly established the circumstance from which an inference of guilt can be drawn against the accused. The circumstances so established are of a definite tendency unerringly pointing towards the guilt of the accused. The circumstance taken cumulatively has formed a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. That is to say, the circumtance so established in the case is incapable of explanation on any reasonable hypothesis save that of the guilt of the accused. In the instant case the following circumstances established by the prosecution are sufficient to implicate the accused in the offence with certainty :
1. Presence of the accused near about the scene of occurrence on the particular night and seeing the deceased at an arrack shop with a packet resembling a bundle of currency notes.
2. The fact that the accused was found in possession of M.O. 13 loaded revolver with M.O. 14 catridges which belonged to deceased Johny on the very next day.
3. The fact that M.O. 12 axe which could have caused the head injury found on Johny and Mariakutty was recovered based on the information furnished by the accused which is admissible under Section 27 of the Indian Evidence Act.
4. Collapse of the plea of alibi set up by the accused.
Accordingly, we confirm the conviction passed in S.C. No. 60 of 1993 by the Sessions Court, Kottayam, against the accused and dismiss the appeal filed by the accused on Crl. Appeal No. 105 of 1998.
16. In the appeal filed by the State as Crl. Appeal No. 642 of 1998 seeking modification of judgment in S.C. No. 60 of 1993 and award of capital sentence to the accused we heard counsel for the accused on the question of sentence under Section 377(3) of Cr.P.C. The submission of the counsel for the accused does not furnish any material at all for not enhancing the life sentence to death sentence. There are no mitigating circumstances in favour of the accused. Mitigating circumstance to be taken into consideration by this Court while deciding the question of sentence is catalogued by the Apex Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980 Cri LJ 636) paragraphs 204 and 205. The case of the accused in our considered opinion will not come under any one of the mitigating circumstances enumerated by the Apex Court in Bachan Singh. On the contrary, there are aggravating circumstances very much present in the case warranting enhancement of sentence. When the sentence of life imprisonment imposed by the Sessions Judge is found to be manifestly inadequate resulting in miscarriage of justice this Court can enhance the sentence to death sentence. See Kodavandi Moideen v. State of Kerala, AIR 1973 SC 467 : (1973 Cri LJ 671). Considering the facts of this case we are of opinion that the sentence of life imprisonment passed by the Sessions Court against the accused is inadequate. This is a 'rarest of rare' case warranting imposition of death sentence. Existence of aggravating circumstances which, in the absence of any mitigating circumstances, have always been regarded as an indication for imposition of extreme penalty. Preplanned, calculated, cold-blooded murder has always been regarded as one of an aggravated kind. In Jagmohan Singh v. State of U.P., AIR 1973 SC 947 : (1973 Cri LJ 370) it was reiterated by the Apex Court that if a murder is "diabolically conceived and cruelly executed", it would justify the imposition of the death penalty on the murderer. The same principle was substantially reiterated by Krishna Iyer, J. speaking for the Bench in Ediga Anamrna, in these terms (Para 26):
The weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steal the heart of the law for a sterner sentence.
(See Ediga Anamma v. State of A.P., AIR 1974 SC 799 : (1974 Cri LJ 683)). Applying the aforesaid legal principles to the facts of the present case it can be seen beyond doubt that there was no provocation between the accused and the five victims. All of them were unarmed and sleeping in their home. They were helpless victims. There was no change for them to face the attack. It is proved beyond doubt that the murder was a macabre and pre-meditated one perpetrated for gain. The manner in which the accused exterminated the entire family of five consisting of father, mother two daughters and one son is really cruel, gruesome, calculated, heinous, attrocious and cold-blooded. The accused is neither too young nor too old. At present he is aged 54 years and at the time of commission of offence he was aged 44 years. He is not married. He is not a breadwinner of any family. Therefore, we have no hesitation in holding that the present is a 'rarest of rare' case warranting imposition of death sentence consistent with the gravity of offence.
17. Learned Public Prosecutor brought to our notice that the accused is a hard-core criminal and he is involved in several other similar cases. In S.C.No. 77 of 1993 of the Sessions Court, Kottayam, the accused was convicted and sentenced for offences under Sections 449, 457, 461, 392, 307 and 302, IPC and the conviction and sentence were confirmed by this Court by judgment dated 5-9-1997 in Cri. Appeal No. 264 of 1996. The accused was tried by the Sessions Court, Kottayam, in S.C. No. 26 of 1993 for offences punishable under Sections 302, 392, 397, 457, and 449, IPC and by judgment dated 4-12-1996 he was convicted and sentenced. The conviction and sentence were confirmed by this Court by judgment dated 4-6-1998 in Cri. Appeal No. 153 of 1997. The accused was tried for similar offences by the Sessions Court, Kozhikode, in S.C. No. 74 of 1995 and by judgment dated 20-9-1996 he was convicted and sentenced which conviction and sentence were confirmed by this Court as per judgment dated 30-10-1998 in Cri. Appeal No. 681 of 1996. The accused who was involved in two other similar cases was tried before the Sessions Court, Kottayam. In S.C. No. 29 of 1993 though the accused was found guilty by the Sessions Court he was acquitted by this Court by judgment dated 5-7-1997 in Cri. Appeal No. 400 of 1997. In S.C. No. 47 of 1993 the accused was tried for offences under Sections 457, 392, 397 and 302, IPC by the Sessions Court, Kottayan, which resulted in acquittal and the appeal filed by the State against his acquittal is pending before this Court as unnumbered Cri. Appeal of 1998. The accused is involved in similar cases outside Kerala State also. At present he is undergoing imprisonment in Central Jail, Salem, with respect to offences committed in the State of Tamil Nadu. The details of those cases are as follows :
1. Tamil Nadu State Neelagiri District Gudalloor P.S. Cr. 531/90 Under Sections 457, 380, IPC - JMC, Gudalloor C.C. 96/91 convicted RI for 3 years on 19-12-1991.
2. Gudalloor PS Cr. 541/90 Under Sections 457, 380, IPC JMC Gudalloor in CC 95/91 - RI for 3 years on 19-12-1991.
3. Gudalloor PS Cr. 547/90 Under Sections 457, 380, IPC of JMC Gudalloor in CC 105/91 - convicted for RI for 3 years on 19-12-1991.
4. Gudalloor PS Cr. 29/91 Under Sections 457, 380, IPC of JMC Gudalloor in CC 94/91 - convicted for RI for 3 years on 19-12-1991.
5. Gudalloor PS Cr. 31/91 Under Sections 457, 380, IPC of JMC Gudalloor in CC 97/91 - convicted for RI for 3 years on 19-12-1991.
6. Gudalloor PS Cr. 548/90 Under Section 449, 392, 397 and 302, IPC - Neelagiri Sessions Court SC 2/92 - RI for life Under Section 302, IPC, RI for 5 years Under Section 449, IPC, RI for 10 years Under Section 392 read with Section 397, IPC on 24-2-1993 - Sentence to run concurrently.
We are not inclined to place any reliance on the aforesaid conviction and sentence passed against the accused by various Courts for assorted offences including the offence under Section 302, IPC. In our considered opinion the facts presented in the instant case are by itself sufficient enough to impose death sentence and in that view we reject the contention of the prosecution for enhancing the sentence based on previous conviction of the accused.
18. Taking note of the entire scenario presented before us we are of the opinion that the accused is a potential danger and menace to the society. Considering the number of persons murdered, age and infirmity of the victims, their vulnerability and helplessness coupled with the diabolic motive, the acts of perversion on the person of one of the victims, we are of opinion that the accused deserves the maximum penalty prescribed by law. We hasten to add that the brutal manner in which the accused wiped out the entire family for monetary gain is revolting to our judicial conscience. If, in spite thereof, we fail to enhance the sentence from life imprisonment to death we will be exposing ourselves to the charge that we are yielding to spasmodic sentiments, unregulated benevolence to spasmodic sentiments, unregulated benevolence and misplaced sympathy. It wil be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of this country suspect. The common man will lose faith in Courts. In such cases, he understands and appreciates the deterrence more than the reformative jargon. (Vide Khalid, J. in Mahesh v. State of Madhya Pradesh, (1987) 3 SCC 80 : (1987 Cri LJ 1073). Failure to impose death sentence in a case of this nature where it is a crime against the society will bring to naught the sentence of death provided by Section 302, IPC. The only punishment which the accused deserves for having committed the reprehensible and gruesome murder of the entire family consisting of father, mother, two daughters and one son for gain is nothing but death as a measure of social necessity and also as a means of deterring other potential offenders. Accordingly, we modify the judgment of the Sessions Court. Kottayan, in S.C. No. 60 of 1993 dated 29-12-1997 and award capital sentence to the respondent in Cri. Appeal No. 642 of 1998 and sentence him to death under Section 302, IPC. We direct that he be hanged by the neck till he is dead.
19. In the result, the appeal filed by the . accused as Cri. Appeal No. 105 of 1998 is dismissed and the appeal filed by the State as Cri. Appeal No. 642 of 1998 is allowed.
Immediately after pronouncing the judgment, learned counsel for the accused Mr. K.S. Ajayaghosh made an oral application for leave to appeal to the Supreme Court under Article 134(1)((c) of the Constitution. We are not satisfied that this is a fit case which merits grant of leave to appeal to the Supreme Court. Accordingly, the leave application is rejected. However, on being told by the learned counsel for the convicted accused we are satisfied that the accused intends to present a petition before the Supreme Court for grant of special leave to appeal under Article 136 of the Constitution. Accordingly, we postpone the execu tion of sentence for a period of two months from today.
Accused will be furnished with a copy of the judgment forthwith.