MADHAVA KURUP VELAYUDHA KURUP Vs. STATE

JUDGEMENT

(1.) These three appeals arise from the judgment in Sessions Case No. 13 of 1951 on the file of the Trivandrum Sessions Court. The learned Sessions Judge who tried the case found accused 1, Velayudha Kurup, guilty of causing grievous hurt with a deadly weapon to PW 1, Krishna Pillai and he was accordingly sentenced to undergo rigorous imprisonment for a period of 18 months Appeal 23 is against that conviction and sentence Accused 2, Sreedharan Pillai, has been found to have caused the death of PW 1's niece, Kunhilekshmi Amma by stabbing her with a pen knife and also grievous hurt with the same weapon to PW 1. In respect of the former offence, namely, murder, he has been sentenced to undergo rigorous imprisonment for life and in respect of the latter to undergo rigorous imprisonment for 18 months. These sentences are to run concurrently. His appeal is Criminal Appeal No 24. The remaining appeal, namely, Criminal Appeal 25, has been preferred by accused 3, Madhavan Nair against his conviction and sentence for causing grievous hurt with a deadly weapon to PW 1. The sentence against him is the same as that passed against accused 1 and 2 for causing grievous hurt with deadly weapon, namely, rigorous imprisonment for 18 months The charge against these appellants embraced several other counts, but they have been acquitted of these charges.

(2.) Besides Kunhilekshmi Amma and PW 1 on the prosecution side PWs 2, 3 and 11 also sustained injuries during the course of the same occurrence. On the defence side all the three appellants sustained severe injuries. The occurrence was at about 11 A M. on 3-6-1123. Kunhilekshmi Amma died the next day (4-6-1123) at 8-45 P. M. PW 1 sustained as many as 15 injuries and he remained an in patient in the hospital unable to follow his ordinary avocations till 9-7-1123. PW 2 had eight injuries and PW 3 five. The former remained in the hospital as an inpatient till 23-6-1123 and the latter till 16-6-1123 PW 11 had only two minor injuries and she was not admitted in the hospital as an in patient. Accused 1 sustained as many as six injuries and accused 2 and 3 eleven each. Each of these accused persons remained in the hospital as in patients for a period of 27 days and during that period they were unable to follow their ordinary pursuits. One noteworthy feature about the injuries inflicted during the occurrence complained of is that all the injuries were of a nature which could have been caused only by sharp instruments. The injuries all except those PW 11 sustained were severe in character; some of them were gaping wounds and others punctured or incised ones. There was a counter case against PWs 1 to 3 and that was tried by the learned Judge as Sessions Case No. 14. That case however ended in the acquittal of all the three accused persons.

(3.) The occurrence that gave rise to the two cases arose as a result of the attempt made by the prosecution party here to harvest the crops from a paddy field in Ooralikonath Ela in Aanad Muri, Palode Pakuthy, which together with other items were delivered over to accused 1 and his elder brother pursuant to the decree in O. S. 667 of 1104 on the file of the Nedumangad Munsiff's Court. The delivery was on 28-4-1123 and it is evidenced by the receipt Ext. Y. The said decree was one in redemption against PW 1. His father, one Ayyasami Iyer, had executed first a usufructuary mortgage and then a purakadom deed in his (PW 1's) favour in respect of the properties comprised in the decree. The mortgage (Ext. 1) was in 1099 and the purakadom (Ext. 2) in 1101. Some years after these documents came into being PW I's mother Kalliani Amma deserted Ayyasami Iyer and left for Singapore with her son by a former husband. Soon afterwards Ayyasami Iyer executed a will bequeathing all his properties to his son Mahadeva Iyer. This served as a prelude for the commencement of a series of litigation which has not seen its end even today. First Kalliani Amma and her eldest son filed a suit to establish that some at least of the properties comprised in the mortgage and purakadom deeds in favour of PW 1 belonged to their tarwad and not to Ayyasami Iyer. That litigation proved abortive as the plaint returned for presentation before the proper court was not represented afterwards. Then came the redemption suit against PW 1 and he fought it to the last ditch, but was badly worsted. He contended that the properties comprised in the two documents belonged to the tarwad and that his father had prevailed upon him to accept the two deeds. When it was found that he could no longer resist redemption his sister PW 3 started a new suit but that failed of its purpose. Meanwhile, Ayyasami Iyer had died and Mahadeva Iyer who got himself impleaded in execution proceedings in place of his father assigned the decree to accused 1 and his elder brother. At long last they succeeded in obtaining delivery of the properties in execution and this, as mentioned earlier, was on 28-4-1123 Within a few days of the delivery, to be exact on 21-5-1123 Kunhilekshmi Amma win was none other than the eldest daughter of PW 3, instituted a fresh suit in O.S. 95 of 1123 on the file of the Trivandrum District Court for a declaration that the redemption decree in O.S. 667, the two documents on the basis of which that decree was passed and the execution proceedings were all invalid and not binding on her or her children. The plaint stigmatised the delivery evidenced by Ext. Y as mere sham and averred that possession had not passed thereunder to the decree holders. On that allegation a temporary injunction was applied for to prevent the entry of the decree holders upon the plaint schedule properties and to restrain further execution. The learned Second Judge before whom the matter came up for orders glibly granted an interim injunction on 25-5-1123. Notice of the order was served on accused 1 on 27-7-1123.