MYNATHIL MATHAI Vs. STATE OF KERALA

JUDGEMENT

(1.) Sri. Mynattil Mathai, alias johny alias Sunny alias Babu, aged 27, son of Poulose, hereinafter referred to as Al Sunny, was the 1st accused in Sessions Case No. 50 of 1980 on the file of the Sessions Judge, Tellicherry; he is the appellant in Cr1. Appeal No. 475 of 1980. Sri. Manachirakkal Mathew alias Appachan, alias M. . Babu, alias Joy, aged 25, son of Thomas, hereinafter referred to as A2 Babu, was the 2nd accused in that Sessions Case; he is the appellant in Cr1. Appeal No. 9 of 1981.

(2.) The charges against them as framed by the learned Sessions Judge are as extracted below: First, that you, accused 1 and 2, on the 12th day of November, 1979, at about 15.30 Hours, at house No. 356, Ward No.6 in Kolikkadavu in Payam amsom desom did commit the murder of Cicily Mathew w/o Mathew, by stabbing her with a dagger with the intention to cause her death or with knowledge that if such is done by you, it would have caused the death of said Cicily, in furtherance of the common intention of both of you, and thereby committed an offence punishable under Section 302 nw Section 34 of the Indian Penal Code and within my cognizance; Secondly that on the same day, time and place and during the course of the same transaction that you 2nd accused robbed the gold chain worn by the deceased and thereby committed an offence punishable under Section 392 of the Indian Penal Code and this act was done in furtherance of the common intention of both the accused, and thereby both of you have committed an offence punishable under Section 392 nw Section 34 of the Indian Penal Code and within my cognizance. And I hereby direct that you be tried before me on the said charges. The trial before the Sessions Judge having ended in their conviction and sentence to imprisonment for life under Section 302 read with Section 34 and to five years rigorous imprisonment under Section 392 read with Section 34 of the Indian Penal Code, these appeals have been preferred by them.

(3.) The background of the case as presented by the prosecution could be briefly stated as follows: - Smt. Cicily Mathew (43), hereinafter referred to as the deceased, was residing with her daughter P.W. 1 Leena (14) and son Joshi (10) in her house built almost in the middle of a compound, nearly 4 acres in extent. On 5.11.1979 Al., Sunny and A2 Babu had approached her for being engaged as mazdoors. She engaged Al Sunny as a temporary domestic servant, and directed A2 Babu to P.W. 7 Padmanabhan who was looking after the rubber garden in the neighbouring compound. P. W. 7 could not oblige A2 Babu, nor could P.W. 3 whom he (A2 Babu) met at his instance, as neither of them had any suitable work to be offered to him. Occasionally, however, he used to visit Al Sunny who was residing in the house of the deceased. On the morning of 12.11.1979 by about 9 a.m. P.W. 1 Leena, studying in the 9th standard in Iritty High School, 3 to 4 Kms away from her house, started for the school with her brother Joshi who was studying in another school; at that time the deceased, Al Sunny and P.W. 6 Madhavi (their maid-servant) were in their house. P.W. 1 Leena returned home that day by about 5.15 p.m. She found the front door of their house closed; on opening the door, and entering the house, to her dismay she found her mother lying on the floor in the interior room with bleeding injuries. Having found that she was dead, she cried aloud. People in the neighbourhood went running to the house. By about 5.45 p.m. P.W. 5 Sri. M. J. Devassia informed the Iritty Police Station about the incident over the telephone. P.W. 28, the Sub-Inspector of Police in charge of the Police Station, at once proceeded to the scene of occurrence in a jeep; and at 6 p.m. he questioned P. W. 1 Leena, and recorded her statement, Ext. P1, on the basis of which Crime No. 258/79 was registered under sections 302 and 392 read with Section 34 I.P.C. against Al Sunny and A2 Babu, Ext. P 43 being the F.I.R. At 8.30 p.m. that day, P.W. 29 Circle Inspector of Police took over the investigation. He conducted the inquest from 7 a.m. to 9 a.m. on 13-11-1979, Ext. P2 being the inquest report attested by P.W. 3 Sri. Ralakrishna Kurup and P.W. 4 Sri. Varkey. Under Ext. P3 mahazar attested by P.Ws. 3 and 4 M.D. 10 dagger and M.O. 13 plastic sheath were recovered from the compound of the house in which the deceased was residing. M.O. 1 is the portion of the gold chain (thara mala) found lying near the body of the deceased, taken into custody as per Ext. P2 inquest report. During the inquest M.O. 4 spectacles, M.O. 5 false teeth, M.Os. 6 Lo 9 wearing apparels used by the deceased and M.O. 11 blood stained earth also were taken into custody. P.W. 25 Dr. K. Jayalakshmi, Assistant Surgeon, Government Hospital, Kuthuparamba, conducted the postmortem over the body of the deceased commencing from 1.05 p.m. on 13.11.1979. Ext. P 36 post-mortem certificate, the material portion of which has been extracted in paragraph 7 of the judgment under appeal, showed that the deceased had sustained five incised wounds, all on different parts of the chest. In Ext. P 36, P. w. 25 opined that the death was due to severe internal haemorrhage and shock due to multiple stab wounds involving vital organs. She had also opined that the injuries in the normal course were fatal and that death might have occurred about less than 24 hours prior to the commencement of the postmortem examination, thereby indicating that the time of death was after 1 p.m. on 12.11.1979. A2 Babu was arrested at Koottupuzha at 8 p.m. on 24.11.1979; and at 10 p.m. that day as per Ext. P 6 mahazar attested by P.W. 11 Sri. Mohanan, M.O. 14 shirt and M.O. 15 lunki, alleged to have been worn by him at that time were taken into custody. Pursuant to the information received from Ext. P 44 statement given by A2 Habu, A 1 Sunny was arrested from House No. 539 in Kuttiadi Panchayat on 25.11.1979 at 4 p.m; on information from Ext. P-45(a) furnished by him (Al Sunny) M.O. 2. weighing 8 grams, which, with M.O. 1, made up the gold chain stated to have been worn by the deceased at the time of the incident, pledged with the Thiruvambadi Service Co-operative Bank for Rs. 400/- through P.W. 18, Mariam, his mother, under Ext. P 21 receipt dated 19.11.1979, and Ext. P 24(b) extract from Ext. P 24 gold loan register were recovered as per Ext. P 25 mahazar prepared at 14.15 hours on 28.11.1979 and attested by P.W. 21 Sri. Shanmugham, the Secretary of the said Bank. Under Ext. P 22 mahazar, attested by P.W. 19 Sri. Ravi and P.W. 20 Sri Poulose. Ext. P 21 receipt referred to above was taken into custody from the house of P.W. 18 Mariam. As per txt. P 26 matrazar dt. 28.11.1979, attested by P.W. 22 Sri. Kunhiraman, M.O. 17 lunki, M.O. 18 armed baniyan and M.O. 19 shirt, alleged to have been worn by Al Sunny at the time of the commission of the offence, were recovered from the house of Manikkam, the aunt of his wife Nalini, P.W. 14, pursuant to the information furnished by him after his arrest on 25-11-1979. On the information furnished by him (Al Sunny), under Ext. P-16 mahazar dated 28.11.1979 Ext. P 14 register maintained by Udaya Traders, Mokeri and Ext. P 9 printed loan sanctioning form on pledge of ornaments with Udaya Traders, Mokeri, and Ext. 15 receipt dated 25.5.1979 issued by the Udaya Traders, Mokeri to Al Sunny for having pledged an ornament weighing 5.500 grams for Rs. 300/- were taken into custody. Ext. P 9(a) is his signature on Ext. P 9 for having received the amount of Rs. 300/- on pledging the ornament; Ext. P 9(b) his signature declaring his ownership to the ornament pledged; and Ext. P 9(c) his signature for having received back the ornament on payment of Rs. 318/50 (Rs. 300/- towards the principal and Rs. 18.50/- towards interest). P.W. 9 Laly, the daughter of P.W. 10 Annamma, who is the sister of Mathew, the husband of the deceased who is stated to, have died about 8 years prior to the time of incident, had identified M.O. 2 to be the part of the Thara Mala, weighing about 11/2 soverigns, purchased from Fashion Jewellery, Ernakulam, which she had given to the deceased in-exchange of the one she was originally having. On information furnished by Al Sunny M.O. 16, the sheath of M.O. 10 dagger, which originally belonged to P.W. 12 Sri. T.K. Appanna, was taken into custody as per Ext. P 7 mahazar dated 27.11.1979 from his house in Peroor, Pallamavatty in Coorg.