MATHAI MATHEW Vs. STATE

JUDGEMENT

(1.) The appellant is the accused in Sessions Case No. 18 of 1951 on the file of the Sessions Court at Parur. He stood charged for the offence of murder punishable under S. 302, Indian Penal Code. After considering the evidence in the case, the learned Sessions Judge found that the act proved against the accused did not amount to the offence of murder, but only to culpable homicide not amounting to murder. Accordingly the accused was convicted under Part I of S. 304, I.P.C. and sentenced to undergo rigorous imprisonment for 7 years. It is against such conviction and sentence that the accused has preferred this appeal.

(2.) The case against the accused is that at about 10 O clock on the night of 2.5.1124 the accused attacked deceased Ulahannan Ouseph Alias Kunju, inflicted a deep cut on the right side of his neck with a knife and thus caused his death. The occurrence is stated to have taken place at the point marked A in the Arappamattom lane in Thondikuzha Kara, Karikode Pakuthy, Thodupuzha Taluk. The situation of this lane as well as the point at which the occurrence is stated to have taken place are shown in the sketch Ext. I prepared and produced by the investigating officer. On the question that Ulahannan Ouseph Alias Kunju met with his death on the night of 2.5.1124 as the result of a cut sustained by him on the right side of his neck, there is no dispute in this case. This fact is also conclusively proved by the evidence recorded at the trial. Pw. 1 is the brother and Pw. 2 is the widow of Ulahannan Ouseph. PWs 5,7 and 8 are independent witnesses who are well acquainted with him. All these witnesses identified the dead body found in the Arappamattom lane on 3.5.1124 and which is described in Ext. B report prepared after holding an inquest on the dead body, as that of Ulahannan Ouseph. After the inquest the body was subjected to post mortem examination by the Medical Officer Pw. 10 and Ext. G is the post mortem certificate issued by him. Of the 8 injuries found on the body of Ulahannan Ouseph and which are described in Ext. G, the first injury was a gaping wound 4 x 1 1/2 bone-deep across the right side of the neck beginning from the thyroid cartilage and cutting the cartilage and all the soft tissues up to the cervical bone. This was a fatal injury according to Pw. 10. These items of evidence establish beyond doubt that Ulahannan Ouseph, the husband of Pw. 2, had sustained the wound on the right side of his neck and that he died as the result of that injury, on the night of 2.5.1124.

(3.) The plea of the accused is that he had nothing to do with the injury which resulted in the death of Ulahannan Ouseph. It is urged on behalf of the accused appellant that the evidence adduced by the prosecution is extremely unreliable and that such evidence does not establish the case alleged by the prosecution. At the outset it may be mentioned that there is no direct evidence to prove the act attributed to the accused. The act is sought to be proved by the several items of circumstantial evidence adduced by the prosecution witnesses and also by a confessional statement given by the accused. According to the prosecution the accused made the fatal attack on deceased Ulahannan Ouseph on the night of 2.5.1124 while they were returning home from the toddy shop at Ezhumuttam, after getting themselves fully drunk. The several connecting links in proof of this version are furnished by the evidence given mainly by P. Ww. 1, 2, 5, 7, 8, 9, 12 and 13 also by Exts. A to C, J, H and N. The learned Sessions Judge has believed such oral and documentary evidence. Pw. 2, who is the widow of the deceased Ulahannan Ouseph, has stated that he had left home at about noon on 2.5.1124 and that thereafter he never returned to his house. On the morning of 3.5.1124 she met his brother Pw. 1 and told him that her husband had not returned home on the previous night and that a search should be made to find him out. This version is corroborated by Pw. 1 also who has stated that on the morning of 3.5.1124 he went out in search of Ulahannan Ouseph and that in the course of the search he found him lying dead in the Arappamattom lane. Pw. 3 who is the wife of the accused has also admitted that on the morning of 3.5.1124 Pw. 1 had been to her house in search of deceased Ulahannan Ouseph. The fact that Ulahannan Ouseph and the accused were together seen in the toddy shop at Ezhumattam is sworn to by P.ws. 7, 8 and 9. Pw. 9 is the salesman in that shop. Pws. 7 and 8 had gone there to take liquor as usual. All these three witnesses have deposed to the fact that the accused and Ulahannan Ouseph had their drinks from the shop and that they remained in the shop till about 9 P.M. When P.Ww. 7 and 8 were about to return from the shop, they invited the deceased also to go with them, because all of them were neighbours and had to go in the same direction. The deceased was inclined to accompany them, but the accused interceded and told the deceased that they can go together after witnessing the dramatic performance that was to commence soon at a place in the neighbourhood of the shop. Agreeing to this proposal the deceased kept back in the company of the accused while the other two returned to their homes. Sometime later the accused and deceased also left the shop. Pw. 9 saw them thus leaving the shop at about 9 P.M. Pw. 12 is another witness who too had visited the same toddy shop on the night of 2.5.1124 to enjoy a drink. He has stated that while he was returning from the shop he saw the accused and the deceased together, proceeding along the Arappamattam lane. This witness had been present at the inquest and Ext. B report shows that even at the time of the inquest he had stated the fact of his having seen the accused and the deceased together going along the Arappamattam lane. They were engaged in some talk the details of which could not be made out clear by the witness. Since those who persons were proceeding slowly, the witness went ahead of them and thus could not witness what transpired thereafter. The next witness who saw these two persons in the Arappamattam lane is Pw. 5. His house is a little to the east of the lane and about half a furlong to the north of the spot where the dead body of Ulahannan Ouseph was found on 3.5.1124. Pw. 5 has stated that while he was at his house he heard some abusive language from the lane and thus proceeded up to the boundary of his compound touching the lane, to see who were the persons engaged in the exchange of such vulgar and abusive language. On reaching the boundary of the compound, he saw that the persons engaged in the exchange of such foul language were Ulahannan Ouseph and the accused and that they were proceeding towards the south along the lane. These persons appeared to be fully drunk and so Pw. 5 did not feel inclined to ask them anything about their behaviour. He simply returned to his house. The house of Pw. 13 is some distance further to the south of the spot where the accused and the deceased were seen by PW 5. The house of this witness is a furlong east of the accuseds house. There is a lane leading to the west of Arappamattam lane and this lane passes just in front of the house of this witness. Pw. 13 has stated that at about 10 on the night of 2.5.1124, when he came out from his house, he saw the accused alone going to the west towards the direction of his house. The witness saw the accused at a distance of 15 feet and he has stated that since it was a moon light night he could clearly identify the accused. The witness has further stated that the accused was alone and that there was none else in his company.