Kunjumon @ Unni vs State Of Kerala

The facts:

2. On 20th October 1997, the appellant and Jose Joseph came to the residential premises of PW-1 Jose son of Anthony at about 4.30 p.m. with the common intention of committing robbery. While Jose Joseph stood guard near the house, the appellant made an entry and came upon PW-2 Lidiya daughter of PW-1 Jose son of Anthony, who was then aged about 11 years. Thereupon he caught hold of her neck, threatened to kill her and then robbed her of her gold chain and two gold ear studs.

3. Thereafter, he entered one bed room in the house and attempted to rob Lidiya’s grandmother Annamma, aged about 90 years of her ornaments. When Annamma raised an alarm the appellant pulled her down from the cot on which she was lying and beat her on the head with a wall clock. He then robbed her of her gold chain weighing about 5.500 grams by breaking it from her neck and also took two imitation bangles from a bag kept inside the almirah in the room. The appellant then went away from the house.

4. Upon the departure of the appellant and Jose Joseph from the scene of crime, Lidiya went to the school where she learnt dancing from her father and informed him of the incident. They both rushed back to the house along with some friends and on discovering Annamma’s condition, she was first taken to Kanjirappally Government Hospital and then to the Kottayam Medical College Hospital for treatment. Unfortunately she passed away on 29th October 1997.

5. On a complaint having been lodged of the robbery, the police investigated the case and during the investigations, on 24th October 1997, the Investigating Officer PW-13 T.A. Salim recovered the stolen articles at the instance of the appellant.

6. On conclusion of investigations, a challan was filed and the appellant was charged with offences punishable under Section 449 of the IPC, Section 397 of the IPC and Section 302 of the IPC. Jose Joseph was also similarly charged but the Trial Judge found him guilty of an offence punishable under Section 411 of the IPC.

7. Both the convicts filed appeals in the High Court. While the appeal filed by Jose Joseph was accepted by the High Court, the appeal of the appellant was rejected and his conviction and sentence upheld.

15. Feeling aggrieved, the appellant preferred Criminal Appeal No. 835 of 2004 in the High Court of Kerala. By its Judgment and Order dated 30th October 2007, the High Court rejected the appeal and upheld the conviction of the appellant. The High Court relied upon the evidence of the witnesses mentioned above to uphold the conviction.

(iii) Murderous intent of the appellant:

32. However, it seems quite clear, and this was also the case of the prosecution, that the appellant had gone to the house of Jose son of Anthony for the purpose of committing a robbery. He did not go for the purpose of or with the intention to kill anybody. That he killed Annamma is unfortunate, but the house trespass was for the purpose of committing a robbery and not for the purpose of committing an offence punishable with death. Under the circumstances, in our opinion, it would not be proper to convict the appellant for an offence punishable under Section 449 of the IPC. To this extent, therefore, his appeal must be allowed. Result:

33. There is no merit in this appeal to the extent of the appellant’s conviction and sentence for offences punishable under Section 397 and Section 302 of the IPC. Accordingly, it is dismissed in this regard. However, the appeal is allowed to the extent that no offence punishable under Section 449 of the IPC has been made out against the appellant.