FRANCIS Vs. STATE

JUDGEMENT

(1.) THE prosecution case was that on 4-1-59 the accused caused the death of deceased bastian. On that day there was the betrothal ceremony of Bastian's daughter. After the ceremony the deceased and Pw. 5, Antony went to the toddy shop at Kompara Muku at Mattancherry at about 6-30 p. m. THEy met Pws. 6 & 7 two rikshaw-walas in the toddy shop. THEy were also invited for drinks. After taking toddy, the deceased Bastian started singing. Pw. 12 Thomas who was supplying toddy objected to the deceased singing. In another room of the shop, the three accused and Pw. 8 were taking toddy. THEy came to the room where the deceased was singing, and the first accused also asked him not to sing. THE deceased got offended at this and told the first accused that he had no business to interfere THEre ensued an altercation. Pw. 2 and others pacified and the deceased and the accused shook hands. While leaving, the first accused told Bastian meaning thereby, that he would kill him. THE 3 accused and Pw. 8 left the shop. While proceeding, near the T. D. School there was a music party and pw. 8 and the second accused remained there. THE 1st accused and the 3rd accused proceeded towards the west. Soon after Pw. 8 and the 2nd accused also followed them and met the first and the third accused at the Ammankoil. THE first accused then said he would not return home without questioning the deceased. Pw. 8 tried to pacify. Pw. 8 parted company and went to his house. Bastian and Pw. 5 also left the toddy shop. On their way home at the Chiralai junction Pw. 5, Antony got into a rickshaw and left for his house. Bastian proceeded to his house alone. When he reached the chapel in the Dharmasala road, the three accused met him. THEy stopped him there. THE second accused caught him in his grips and the first and third accused assaulted him. Deceased Bastian had a knife with him, and when he waved the knife it struck the second accused and he was injured. THE second accused then said On hearing this first accused whipped out the dagger, from his waist and stabbed Bastian on the chest and left shoulder He ran a few yards and fell down. THEn second accused and third accused are alleged to have assaulted bastian. Pw. 3 witnessed the entire incident. Pw. 1, Annamma who lives nearby heard the commotion and she saw Bastian falling down and second accused beating bastian. Pw. 4, Varghese heard the words and the voice appeared to be that of the second accused. He rushed to the scene at once and saw the first accused leaving the place with the dagger. Pw. 2 Antony, the son of Bastian on getting the information reported the matter to the Police at 11-15 p. m. Pw. 23 the Sub-Inspector registered a case. Pw. 24, the circle Inspector of Police held the inquest over the dead body the next morning. Pw. 21 conducted autopsy and Ext. P8 is the postmortem certificate. He has noticed two injuries on the deceased: (i) A stab wound 1" long 1/4" broad on the right side of the chest; and (ii) A stab wound 1"x 1/2" on the medial aspect of the left supra clavicular fossa. On dissection injury No. 2 was found to have penetrated inside and severed the left external and internal jugular veins and medial end of left subclavian artery. According to him injury No. 2 in Ext. P8 is necessarily fatal and the cause of death was shock and haemorrhage due to the stab wounds described by him in Ext. P8.

(2.) THE accused admit that they had met Bastian at the dharmasala road near the Chapel. According to the 1st accused Bastian felled him down by beating him. THEn second accused caught hold of Bastian. Bastian stabbed him on the hand. THE second accused and third accused then ran away from the place. After the second and third accused left the scene, Bastian attempted to stab him, when he took the dagger M. O. 2 and stabbed in self defence. According to him Bastian was the aggressor and he says, if he had not used hie dagger Bastian would have killed him the second and third accused support this version.

(3.) PW. 8, Peru Thomas is a very important witness. He is an uncle of the first accused and was present with him in the toddy shop. He has no axe to grind against the first accused. His evidence is that the three accused did not go back to their house after leaving the toddy shop and when he left for his house the 1st accused told him that he will not go home without questioning Bastian. Even at the toddy shop, we have the evidence of PW. 5, Antony that after Bastian and the 1st accused shook hands, the 1st accused told bastian meaning thereby that he would kill him. Later on, all the three accused met Bastian at the chapel in the Dharmsalaroad and stopped him there and the first accused stabbed him. If this evidence is true and acceptable, then there cannot be the slightest doubt that the 1st accused was on the aggressive that night and was waiting for an opportunity to attack Bastian as he was coming along. PW. 3 is an eye-witness to the Whole incident. If his version of the incident is true, no question of private defence arises at all. We have carefully looked into his evidence and do not find anything to discredit it. There is absolutely no enmity between him and any of the accused. The discrepancies and contradictions referred to by the learned counsel for the defence are more imaginary than real and we have no hesitation in accepting his testimony. His evidence to a great extent is corroborated by the evidence of pws. 1 and 4 and they are also thoroughly disinterested witnesses. Merely because the first and second accused sustained certain injuries in the course of the incident is no reason to discredit the testimony of the prosecution witnesses and that does not help the accused in proving the case set up by them. The subsequent conduct of the 1st accused is also not consistent with the plea that he has set up. If really he was not the aggressor and he acted only in self defence one would have expected him to rush up to the authorities and complain, instead of absconding from the place. There was no need for him to hide the dagger M. 0. 2 in the tapioca-bed. According to PW. 24, the Circle inspector of Police on information furnished by the 1st accused this dagger was seized from the tapioca-bed under list Ext-P4. PW. 17 is the attestor to Ex-P4. We therefore find that the learned Sessions Judge was perfectly justified in negativing the plea of the accused and finding the 1st accused guilty of the offence he stood charged with.