STATE OF KERALA Vs. KUTTAPPAN

JUDGEMENT

(1.) KUTTAPPAN, a carpenter, aged 30, was tried by the Court of Session, Ernakulam, for offences punishable under Sections "302, 324 and 323, I. P. C. " on a charge that he intentionally caused the death of Asha, his two-year-old female child, by holding it by its legs and violently striking its head against floor and voluntarily caused hurt to Karthiayani, his wife (PW 1), by beating her with hand and with a wooden plank (M. O. 1 ). The incident happened inside the western room of the house where Kuttappan was residing with his wife Karthiayani, son Aji aged 7 and Asha aged 2 and was at about 2 a. m. on the night between April 7 and 8, 1979. On the conclusion of the trial, the First Addl. Sessions Judge accepted the prosecution evidence as reliable and found that "the prosecution has proved the case that the accused caught hold of the legs of the sleeping child Asha and struck her violently against the floor and that as a result of the injuries sustained the child died the next day at the hospital. " It was also found that the accused voluntarily caused hurt to PW1 by hitting her on her left eye brow with M. O. I wooden plank. But strangely on the basis of these findings, the trial court convicted the accused only under Section 304-A, I. P. C. for having caused the death of Asha acquitting him. of the charge under Section 302, I P. C. and for having voluntarily caused hurt to PW 1 he was convicted only under Section 323, I. P. C. and sentenced to suffer simple imprisonment for 3 months on each count, with the direction that the sentences shall run concurrently.

(2.) THE State has now come up in appeal challenging the order of acquittal of the charge under Sections' 302 and 324, IP. C. The accused has-not filed any appeal against the convictions and sentences passed against him.

(3.) KUTTAPPAN, the accused, married PW 1 some nine years ago and immediately after the marriage they were living together in the accused's house for 3 years. Aji was born to them during this period. A balance amount of Rs. 200/- towards stridhanam was due to the accused. There used to be quarrels between PW. 1 and the accused on account of the non-payment of this amount and on one such occasion, leaving the accused's house PW 1 came to her parents' house and was residing with them for two years. During this period, the father and brothers of PW 1 purchased a six cent plot of land and constructed a small building thereon. Thereafter PW 1 along with Aji was residing there. While so there was a reconciliation between the accused and PW 1 as a result of which the accused started residing in the house of PW 1. It was thereafter Asha, the second child, was born to them. Even while they were residing there, the accused used to remind PW 1 about the balance amount of stridhanam which remained unpaid. On the night of occurrence, the accused came home late at about midnight and after taking food took a mat and went to the western room to sleep. Aji was sleeping on a mat spread on the western end of the room and near to that was lying Asha, PW 1 and the accused were also sleeping close to the children in the same room on another mat. By about 2 a. m. the accused started talking about the stridhanam remaining unpaid and also about the sale of the house and property where they were living. On prior occasions also the accused used to tell PW 1 about the sale of the house and the property. As PW 1 did the suggestion of the sale of the house and the property she kept mum without giving any reply. This irritated the accused arid he gave a slap on her cheek with hand. At this time All got up. A small kerosene lamp was burning inside the room. Even after receiving the blow, PW 1 did not give any reply to his suggestion. Thereafter she got up from the mat and moved towards the door of the room facing the verandah. The accused then went near sleeping Asha and holding her legs in both his hands violently struck her head against the floor. PW 1 entreating not to kill her child rushed towards the accused when the accused took M. 0. 1 and gave a blow on the left eye brow of PW 1 causing an injury. PW 1 raised a hue and cry. On hearing the cries neighbours, Saramma (PW 5), Kunjipennu (PW 8), Ramakrishnan (PW 6), brother of PW 1 and others came running to the place of occurrence. The accused left the house immediately. Asha and PW 1 were removed in a vehicle to the Government Hospital at Kothamangalam, where they were examined and treated by PW 2 doctor in-charge of that hospital.