MATHAI Vs. STATE OF KERALA

JUDGEMENT

(1.) ACCUSED 1 & 3 in Sessions Case 9 of 1962 on the file of the Sessions Judge of Ernakulam are the appellants. The first accused has been convicted under S. 302 IPC. , for the murder of Varkey and also under s. 326 IPC. , for causing grievous hurt to Pws. 1 and 2. The third accused has been convicted under S. 325 IPC. , for having caused grievous hurt to deceased varkey. There were two other accused in the case who were, charged with these offences read with S. 34 IPC. , but they were acquitted.

(2.) THE facts of the case briefly stated are as follows: THE accused and the deceased are neighbouring cultivators. Karimkulamchal nilam belonging to the accused lies to the south of a thodu which flows west to east as indicated in the plan Ex. P11. Immediately to the north of the thodu there is the Kundamkunnam road. THE paddy field of the deceased Varkey lies to the north of the road. Accused 1 to 3 are brothers and the fourth accused is the son of one of their deceased brother. THE prosecution case is that the water in the thodu was being taken by deceased varkey through a water channel connecting his paddy field with the thodu. At that time the road was only upto the connecting water channel, but when the road was extended and Varkey found it difficult to get water to his paddy field, he constructed a tunnel underneath the road to allow water to flow from the thodu to his water channel. THE tunnel, it is stated, was put up on the day previous to the date of the incident. After constructing the tunnel deceased varkey put up a bund blocking the flow of water to the east so that water would flow through the tunnel.

(3.) WHEN questioned at the preliminary enquiry beyond merely denying the incident they did not say anything else. WHEN questioned in the Sessions Court the first accused stated that on that day himself and accused 2 and 3 were in the house of the third accused, when they got information that the prosecution party had put up a dam across the thodu preventing water flowing into their paddy field. On prior occasions when deceased Varkey attempted to put up a dam in the thodu they had prevented the illegal act. Two days before the occurrence Pw. 2 and his sons had constructed a tunnel and put up a bund and finding that if the bund were allowed to remain their cultivation would be affected and they had cut open the bund and restored the thodu to its original position. WHEN they heard that the prosecution party was again putting up the bund they went to the place to prevent their going so. While they were approaching they were pelted with stones. Deceased Varkey then felled him to the ground and when he attempted to get up deceased caught hold of his throat and attempted to throttle him, and apprehending danger to his life he took out his knife and waved it which hit the deceased. He admitted that Pws. 1 and 2 were also present there and that Pw. 1 pushed the second accused and Pw. 2 pushed the third accused by their neck and when they were doing so he waved the knife at them also with the result that they were also injured. The third accused supported the case of the first accused.