ASOKAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant in Crl. Appeal No. 408 of 1979 has been convicted by the Additional Sessions Judge, Parur, Under Section 304, Part II, I.P.C. and sentenced to undergo rigorous imprisonment for a period of 7 years. He is aggrieved by the conviction and sentence entered against him. The State has filed Crl. Appeal No. 59 of 1980, contending that the trial Court ought to have recorded a conviction Under Section 302, IPC

(2.) PWS . 1 and 5 are sons and PW 6 the brother of the now deceased Kumaran, who died in the occurrence which took place on 14 -3 -1979 at 1.30 p.m. in front of P.W. 2's shop in Puthenvelikara village. There was an earlier Sessions case, in which PW l's brother Sudheesh was charged with the offence of murder of Raman Kunhi, the father of the present accused and the case ended in acquittal. Since then the members of the two families have been on terms of enmity. Near the shop of PW 2 is the toddy shop, of which PW 4 is the Manager and PW 3 an employee. There was an exchange of words between PW 3 and deceased Kumaran inside the toddy shop and they came out to the shop of PW 2. At that time the accused was at the shop of PW 2. Kumaran mentioned the case against Sudheesh, which was objected to by the accused. PW 2 asked them to leave the shop. Kumaran proceeded eastwards and the accused also followed him. The accused took M. O. 4 'muttikkal' from his waist and gave a blow, which fell on the left cheek of Kumaran, who tried to avoid the blow, tripped and fell down. Immediately the accused took Mo. 5 tappers' knife from his waist and inflicted cuts On the forehead and both the legs of Kumaran and left the scene taking his weapons. PW 2 rushed and gave information to PW 6, PW 5, who happened to come to the scene, bandaged the injuries with his 'thorthu' Mo, 6. A taxi was fetched. But the taxi driver fell giddy on seeing the injured. The injured was put in a cot and carried by PW 2 and others and taken to Puthenvelikkara hospital, where PW 8, the doctor, advised the injured to be rushed to the District Hospital, Ernakulam. Meanwhile PW 1, who heard about the occurrence, went to the scene, came to know that the injured was removed to the hospital and proceeded to the Puthenvelikkara hospital. From there the injured was taken in a car to the District Hospital, Ernakulam. When the car reached near Ernakulam at about 4.15 p.m. Kumaran died. When he was taken to the hospital he was found to be dead. The doctor in charge gave a phone message to the Central Police Station, Ernakulam, from where a police constable, PW 14, was sent to guard the body. A phone message was sent from the Central Police Station to the Vadakkekara police station stating that PW 1 was on his way to the station to give information. PW 1 along with mother and others returned home. Thereafter PW 1 went to the Vadakkekara police station at about 7.30 p. m. and gave Ext. P 1 statement, on the basis of which PW 19, the Asst. Sub Inspector of police, registered Crime No. 42 of 1979 against the accused. PW 19 sent PW 15 to guard the same. Meanwhile, at 3.15 p. m. the accused went to Government Hospital, Parur, where he was admitted as inpatient by the doctor, PW 9, who also sent information to the Parur Police station, from where PW 18, the Asst. Sub Inspector of police, went to the hospital and recorded Ext, P 13 statement of the accused registered a case as Crime No. 69 of 1979 and transferred the case to Vadakkekara Police station. PW 20, the Sub Inspector of police, Vadakkekara re -registered the case as crime No. 43 of 1979 as per Ext. P. 15, F. I. R.

(3.) JUDICIAL I Class Magistrate, Parur in C. P. 3/79 committed the accused to stand his trial before the Sessions Court, Ernakulam. The case was transferred to the file of the Additional Sessions Judge, Parur. The accused was defended. He pleaded not guilty to the charge Under Section 302 I. P.C. framed by the trial Judge. Prosecution examined 22 witnesses. Exts. P 1 to P. 19, D 1 to D 5 series and Mos. 1 to 9 were marked. The accused told the trial Judge that as a tapper he had gone to the toddy shop to get his wages and seeing Kumaran in an aggressive and abusive mood withdrew from there and went to PW 2's shop and was sitting there and that PW 3 and Kumaran came out and Kumaran mentioned the case relating to the murder of Raman Kunhi, which was objected to by the accused. PW 2 asked them to leave the place, which they did. On the way Kumaran caught him by his neck and when he tried to free himself, Kumaran took out a knife from his waist and stabbed the accused and he was injured in spite of his attempt to ward off. Thereafter, according to the accused, Kumaran took out 'muttikkal' and beat him on his cheek. This was followed by a scuffle, in which both of them fell down. When the accused got up extricating himself he was kicked by Kumaran and then the accused took his knife and waved it, as a result of which Kumaran sustained injuries on his legs. The trial court on the basis of the testimony of PWs 2 to 4 held the accused guilty of culpable homicide not amounting to murder in the light of exception 2 of Section 300 IPC and convicted and sentenced him under S, 304, Part II, IPC