MANI JOSEPH Vs. STATE

JUDGEMENT

(1.) JOSEPH the appellant In the appeal, was convicted by the learned Additional Sessions Judge, Kottayam for the commission of an offence of culpable homicide not amounting to murder falling under Section 304 part (ii) I. P. C. , and sentenced to undergo rigorous imprisonment for a period of seven years. He stood charged for the murder of his deceased brother's son, by name Joseph and for attempting to murder his brother Varkey, P. W. 1 in the case. The learned Judge acquitted the appellant of the charge of attempt to murder in that there was no evidence to connect him with the said crime, but found that his nephew Joseph died as a result of the injuries he sustained at the hands of the appellant and convicted and sentenced him as above. For reasons not very explicable the prosecution conceded that the offence was not murder but only culpable homicide not amounting to murder. The appeal is against the conviction for that offence and the sentence passed in respect thereof.

(2.) THE deceased's father predeceased the deceased's grand-father. The grand-father had four sons of whom the deceased's father was the eldest. The appellant is the second son and P. W. 1 the third, the fourth being one Deavasia. The appellant's father died intestate some two or three years prior to the occurrence. The mother was in possession of the properties and some time before the occurrence on 11-2-1125 she executed a settlement deed (Ext. D) under which the deceased son's branch and P. W. 1 did not have a fair deal. The bulk of the properties was given to the appellant and Devasia. The deceased was the eldest son of his father and he complained to the grandmother about the inequality of the division she effected. It would appear P. W. 1 also used to complain about it and the grand mother one day asked the deceased to go over to the house of the appellant together with P. W. 1 and told that she would try to make the appellant and Devasia agree to make the necessary adjustments in the division. Accordingly on the afternoon of 6-3-1125 the deceased went to the appellant's residence, P. W. 1 and Devasia went up a little later and the prosecution case is that during the discussion the appellant felt offended at the deceased and gave him not less than four Blows on his head with a heavy bar made of cocoanut or palmyra stem and that when p. W. 1 tried to intercede he was beaten on his head twice by the appellant, The deceased was rendered senseless immediately and P. W. 1 escaped from the place. Soon afterwards both the injured were removed to the Lalam Government Dispensary for medical aid. Joseph however succumbed to the injuries that night itself at 9-30 P. M, and P. W. 1 remained in the hospital an inpatient for over a month.

(3.) THE evidence in the case has established that the deceased Joseph got injured at the tune and place mentioned by the prosecution and that he died as a result of those injuries. It is also equally clear on the evidence that at the same time and place P. W. 1 also sustained injuries which necessitated his remaining an inpatient in the Lalam Dispensary for over a month. The prosecution was however labouring under very heavy handicaps to establish as to who the person or persons responsible for inflicting injuries on those two persons were, The first information in the case (Ext. A), which was one the police took from P. W. 1 after he and Joseph reached the Lalam dispensary, would show that when he went to the appellant's house on the afternoon of the date of the occurrence, Joseph was already rendered senseless as the result of the injuries he sustained on the head and that after his advent the appellant gave one or two blows on Joseph's head stating that he won't rest content unless he succeeded in sending his body to the hospital mortuary that day. His statement further shows that when he interceded Devasia gave two blows with an iron bar, one on the right side of the head and the other on the back of the head and that thereafter he escaped. The statement is then taken up with his removal to the dispensary etc. On all accounts Joseph had become senseless right from the time of the first blow or blows and he never recovered consciousness thereafter, P. W. 1 reaffirmed his statement to the police in a statement he made before the First Class Magistrate of Meenachil the same night at 8 P. M. Though the police sent the first information report implicating the appellant and Devasia, when it came to the charge-sheet Devasia's name was omitted and according to that document the appellant it was who inflicted injuries both on the deceased and on P. W. 1. The explanation for this variation in the prosecution records is that P. W. 1. had later on told the investigating police officer that Devasia was innocent, that the appellant it was who inflicted injuries on both himself and the deceased Joseph and that Devasia was falsely implicated in the first records on account of domestic feud. Whether that explanation be true or false, in his evidence both in the Committing Magistrate's Court and at the Sessions trial P. W. 1 stuck to his earlier version in the first information and the statement before the Magistrate. There was no other evidence in the case to prove the infliction of injuries on P. W. 1, with the result that the charge against the appellant of the attempt to murder P. W. 1 failed. The learned Judge was therefore compelled to acquit the appellant of that charge.