JOSEPH Vs. STATE

JUDGEMENT

(1.) Accused 1 and 2 in Sessions Case No. 23/59 on the file of the Sessions Judge, Alleppy are the appellants. The 1st accused has been found guilty under S.302 I.P.C., and sentenced to rigorous imprisonment for life and the second accused was found guilty under S.324 I.P.C., and sentenced to rigorous imprisonment for one year. Originally there were 9 accused in the case. Accused 3 to 9 have been acquitted of all the charges.

(2.) The prosecution case briefly stated is as follows: The accused in the case with some others owned a fishing net. The deceased Sextus also owned a similar fishing net. Pws. 1 to 3 and 16 and 17 are employees under the deceased Sextus. They were all residing in the beach and engaged in the profession of fishing. In the afternoon of 18-12-58 both these fishing nets were taken and spread in the sea for catching fish. The two nets accidentally got interlocked as a result of which the nets got damaged and there was an exchange of words between the deceased Sextus on the one hand and accused 3 and 4 on the other side. The next morning also when they spread their nets, they got interlocked and it is the prosecution case that the accused sustained damages to the net and did not get any fish. After drawing the nets that day morning it is stated, accused 2 to 9 formed themselves into an unlawful assembly and started abusing the labourers of Sextus who were collecting fish from their net. Pw. 2, one man from Sextus group had gone to take a basket for collecting the fish and was returning with the basket. Seeing Pw. 2 the second accused abused him and Pw. 2 abused him in return. The second accused then pushed Pw. 2 and Pw. 2 gave the second accused a slap on his cheek. Then, it is stated, the second accused took a dagger and stabbed Pw. 2 on his chest. Pw. 2 then cried out & Pws. 3 and 4, the brothers of Pw. 2 & the other labourers rushed up to the place. There was then a free fight between the two parties. While the fight was going on, the deceased Sextus came from the east and asked them to stop quarrelling. At the same time the 1st accused is alleged to have come up to the scene from the north saying "what are you saying; if you are done away with the whole quarrel will end". So saying he wrested the dagger from the second accused and stabbed Sextus 3 or 4 times. Sextus warded off the stabs by his left hand and fisted the first accused on his abdomen with great force, which forced the 1st accused to sit down. Sextus is again said to have tried to pacify the fight that was going on. By this time the 1st accused rose up and inflicted a fatal stab on the left side of the chest of Sextus. On receipt of this injury he fell down. 1st accused then took to his heels. While the 1st accused was proceeding Pw. 7 who was in the fight gave 2 or 3 blows to the 1st accused with a stick in his hand. Then all the accused ran away from the scene. Sextus was removed to the boat to be taken to the hospital, but he passed away in the Vallam and hence he was taken back to his house. Pw. 2 who was injured was then taken to the hospital. Pw. 1 went to the Kuthiathodu police station and gave Ext. P1, first information statement at 10 a. m.; within about 2 hours after the occurrence Pw. 24, the Sub Inspector of police then proceeded to the scene. On getting information Pw. 25, the Circle Inspector also reached the spot. He held the inquest. At about 4-30 p. m., accused 1, 2 and 5 appeared in the police station. Pw. 23 the head constable recorded the statement of the 1st accused and they were all arrested. Pw. 18, the medical officer conducted the post mortem and issued Ext. P17 post mortem certificate. Pw. 2 also was examined and Ext. P18 is the wound certificate issued to him. Pw. 11 another medical officer examined Pws. 4, 5, 6, 7, 8, 15 and 17 and granted certificates. Pw. 25 charged both the cases. In the counter case which was also tried by the same Sessions Judge in Sessions Case No. 34/59 the learned Sessions Judge acquitted all the accused. The learned Judge as stated earlier acquitted accused 3 to 9 on the ground that there was no unlawful assembly and that the overt acts attributed to them have not been proved. The learned Judge held that it was proved that it was the 2nd accused who inflicted the injury on Pw. 2 & found him guilty under S.324 I.P.C. Similarly the learned Judge held that it was proved that it was the 1st accused who inflicted the fatal injury on Sextus and found him guilty under S.302 I.P.C.

(3.) It is not disputed that Sextus sustained injuries and died as a result of those injuries. Pw. 18 is the medical officer and he proves Ext. P17 the post mortem certificate. Ext. P17 shows that Sextus had sustained 6 injuries. Injury No. 1 is a penetrating wound 1" x 1/4" on the right side of the chest 2 1/2" above and medial to the right nipple going upwards and medially between the 2nd and 3rd ribs cutting the pectoralis muscles, intercostal muscles, right pleura-upper lobe of the right lung, going 3" deep into the lung tissue towards the hilum. On dissection the doctor found an incised wound l"x 1/4"x 3" going towards the hilum of the right lung. This the doctor says is a continuation of injury No. 1. He says the injury was fatal and sufficient in the ordinary course of nature to cause death and that the deceased had died of shock and haemorrhage as a result of these injuries.