KUTTY ALIAS DEVASSIA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE accused in Sessions Case No. 36/1980 before Sessions Court, Thodupuzha, is the appellant. An elderly couple Mani (70) and Anna (65), who had settled in the High Ranges were killed, and their son the appellant Devassia (a) Kutty (42) was charged with the murder. The trial court convicted him under Section 302 I.P.C. on two counts and sentenced him to undergo imprisonment for life on both counts. The conviction and sentence are challenged in the appeal. The deceased couple who had four sons and three daughters were living alone by themselves at Poriyathu house in Vellilemkandom kara of Ayya -ppancovil village about 12 kilometers away from Kattappana police station. Their sons Joseph (P.W. 12) and George (P.W. 5) had their separate residence in the same locality, while the other two sons Kunjukunju and Kutty had been living at Thidanadu in Kottayam. The occurrence happened during night on November 10, 1979, inside the room where the deceased were sleeping. Anna died on the spot, while Mani removed to the hospital died at 6 -15 p.m. the next day. The post -mortem examination revealed that they died as a result of the multiple injuries caused with a cutting instrument like chopper. The crime was registered against the appellant for offence under Sections 302 and 307 I.P.C. on 11 -11 -1979 on recording Ext. P1 statement of P.W. 1 Sivaraman Nair at 8 A.M. at the Kattappana police station. In the course of the investigation M.O. 2 chopper was recovered under Ext. P6. The case was charge -sheeted for offence under Section 302 I.P.C.

(2.) THE prosecution case briefly stated is this: The appellant had ill -feeling towards his parents on account of his dissatisfaction over the settlement of properties. The deceased agreed to sell the property at Thidanadu to P.W. 6 under and agreement dated 3 -11 -1979 turning down the offer of the appellant to purchase the same. Anna had also declined to execute a registered document in favour of the appellant in respect of the property given to him. The appellant was frustrated and this according to the prosecution furnished, the motive for the crime. The prosecution case is that the appellant came to the house where the aged parents lived, on the night of 10 -11 -1979 and at midnight made the murderous assault on both the deceased using M.O. 2 chopper. Mani was awakened by the screaming of his wife and he saw the appellant cutting her with the chopper. The appellant then struck him with the same weapon and retreated when Mani dropped on the bed. P.Ws. 1, 2 and 3 are the immediate neighbours who reside within a range of 70 to 120 meters from the house of the deceased. At about 6 -30 A.M. P.W. 1 who used to milk the cow came to this house. He noticed the injured and was told by Mani what happened. P.Ws. 2, 3, 4 and 5 immediately reached the place on being alerted. In the presence of these persons also Mani had made statements implicating the appellant.

(3.) THE appellant in challenging the conviction and sentence has urged that there is no evidence to warrant the conviction; the so -called dying declaration of deceased Mani is not genuine or acceptable and the evidence is highly artificial. It is said that there is no circumstance inconsistent with the innocence of the appellant and the conviction is therefore wrong. The main contention advanced on behalf of the appellant is that the deceased Mani as a result of the injuries sustained was physically incapable of making any statement; his faculties of speech were so impaired that he could not have made any dying declaration and that the medical evidence has not been properly appreciated by the trial court in determining the genuineness of the oral declaration and the veracity of the prosecution evidence. It was also maintained that the motive alleged is so feeble and the conduct of the appellant only consistent with his innocence, that these are not circumstances pointing to the guilt of the appellant.