KUNHAMMED Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE appeals are from the judgment of the Sessions Judge,Kozhikode,in Sessions Case No.41 of 1959.Criminal Appeal No.342 of 1959 is by the 1st accused who was convicted under section 302,Indian Penal Code,and sentenced to rigorous imprisonment for life.Criminal Appeal No.42 of 1960 is by the State against the acquittal of accused 2 and 3 who were charged with the offence under section 302 read with section 34 and section 409 of the Criminal Procedure Code.

(2.) THE case for the prosecution may be briefly stated:Accused 1 and 2 are brothers and the 3rd accused is stated to be a dependent of theirs.Deceased Mammunny and accused 1 and 2 are the sons of one Mammadukutty Haji,the deceased being the latter's son by his first wife,and accused 1 and 2 by his second wife.There was enmity between accused 1 and 2 and the deceased.About three years before the incident,Mammadukutty Haji went on a pilgrimage to Mecca and before he left,he gifted all his properties to his second wife and children.He was not on good terms with the deceased at that time.After his return the deceased and his sisters sued for and obtained recovery of possession of their share of their deceased mother's properties from Mammadukutty Haji.The latter gifted his share of his first wife's properties also to his children by the second wife.Notwithstanding the gift of the properties to them Mammadukutty Haji took possession of his properties at Thenhipalam and he sought to recover the other properties also from accused 1 and 2.They drove him from the house and thereafter he was being supported by the deceased who arranged a third marriage for him.Mammadukutty Haji was contemplating the institution of a suit for cancellation of the gift deed to accused 1 and 2 and others.The deceased was actively assisting him in this endeavour and as a result of his intervention,accused 1 and 2 were entertaining animosity to him.At about 7 P.M,on 26 -7 -1959 when the deceased was returning home from his shop about a furlong to the west of his house,accused,1 to 3 were lying in wait for him in the narrow lane on the southern side of the deceased's compound.When the deceased reached there the 1st accused is alleged to have inflicted several injuries on him with a bill hook.Accused 2 and 3 are said to have assisted him,the former by flashing a torch and the latter by standing with a stick close by.P.W.1 who was waiting in the deceased's house to take food before going to the shop to keep watch at night heard the deceased's cry and ran to the lane when he saw the 1st accused cutting the deceased with the bill hook and the latter trying to ward off the blows while retreating.The 1st accused threatened P.W.1 warning him against approaching,and when he raised a hue and cry,the accused ran away.P.W.1 and others came there attracted by the noise and they removed the deceased to his house where he died soon after.P.W.1 left the place to inform P.W.8,the maternal uncle and father -in -law of the deceased.Early morning the next day P.Ws.12 and 13 who were the sons of Mammadukutty Haji's elder brother went to give information to the authorities.P.W.12 proceeded to the Police station at Kondotti where he gave a statement,Ext.P.7,to the Sub -Inspector of Police(P.W.18)at 7 -30 A.M.P.W.13 gave a statement(Ext.P.8)at 8 A.M.to the Village Munsiff(P.W.14 ).The latter prepared Exts.P.9 and P.10 Yadast and sent Ext.P.9 together with Ext.P.8 to the Police and Ext.P.10 with a copy of Ext.P.8 to the Magistrate.P.W.14 then proceeded to the scene of occurrence.P.W.18 registered a case and after preparing the first information report and sending reports to his superior officers,he went to the house of the deceased which was about six miles away and reached the sene of occurrence,recovered M.O.2 stick and M.O.5 bloodstained earth from the lane and prepared a list(Ext.P.12)regarding the same.He held the Inquest and Ext.P.13 is the Inquest report.The dead body was sent for post mortem examination to P.W.4 who conducted the same and issued a certificate Ext.P.2.On information received by P.W.18 he went to the house of the Ist accused's sister where he found him.As he had some injuries he was sent to the hospital along with a constable(P.W.16)and he was kept there under surveillance.He was arrested when he was discharged on 8 -8 -1959.Accused 2 and 3 were absconding and were apprehended only on 8 -8 -1959.The investigation was conducted at first by P.W.18 and then by the Circle Inspector of Police P.W.19.The case was duly filed before the Sub -magistrate,Manjeri who committed the same to the Court of Sessions for trial.

(3.) THE fact that Mammunny died on 28 -7 -1959 as a result of the injuries sustained by him was not disputed either in the court below or here.Ext.P.2 shows that he had ten injuries on his body: "( 1)Incised gaping wound 41/2 "in length cutting the scalp and bone situated 2 "above the forehead and placed transversely and centrally.On opening the skin it is seen that the break in the bone is 6 "and this extension is to the left side.Internally button holding of the membranes of brain present. (2)An incised wound 2 "in length gaping and exposing the bone placed 1 "to the left of injury No.1 transverse. (3)An incised wound 91/2 "in length starting just above the middle of the left eye brow and transferring through the right side of nose and chipping off at the lower two -third of nose with breaking of bones of the nose.The wound transverse through the middle of upper lip and it takes out a flap of skin with the cut of nose. (4)Left upper lateral incisor tooth is shed and the bent tooth fits in there. (5)Incised wound of 2 "x skin deep and gaping on the top of skull oblique. (6)A choppsed up area of scalp skin deep at the Occipital region of skull rounded in shape with a diameter of 3 " ;. (7)The index finger of left hand is chipped of from the first interphalangeal joint.It is an incised cut. (8)An incised wound of 5 "in length on the left hand at its middle cutting all the structure including the metacarpal bones and making a button hole of 11/2 "in length in the skin of the anterior part wounding placed transversely. (9)An incised wound 6 "in length and 1 "in breadth 21/2 "in depth placed on the medial aspect of right thigh 2 "below the mid inguinal region and directed downwards and medially.It cuts all the structure and reaches the bone;and (10)Multiple abrasions on the lateral aspect of the right elbow." P.W.4 who conducted the autopsy has deposed that Mammunny died as a result of shock and haemorrhage due to the multiple injuries sustained by him.