OUSEPH Vs. STATE

JUDGEMENT

(1.) THIS is an appeal against a conviction and sentence for committing murder. In Sessions Case No. 17 of 1952 the learned Sessions Judge of Trichur found the appellant, Devassy Ouseph guilty of murder in that he caused the death of his wile Eliakutty by cutting her throat with a pen-knife. He has been sentenced to undergo rigorous imprisonment for life. The appeal was tiled from the Central Jail. When it first came up before us for hearing on 8. 12. 1952 we thought this to be a fit case why the extreme penalty of law should not be inflicted upon him. Notice was accordingly issued to him to show cause against enhancement of the sentence, The appeal and the 'suo motu' revision were heard together. At the request of the appellant he was brought over to the Court at the time of the hearing. The Court also engaged Shri P. M. Commen, Advocate, to appear on his behalf. The learned Public Prosecutor appearing on behalf of the State supported the conviction and the motion for enhancement of the sentence, Shri Commen argued contra on both matters. We also heard what representations the appellant had to make in the appeal and in the revision.

(2.) THE conclusion we have arrived at is that, the conviction and sentence passed by the learned Judge should be confirmed and that the sentence need not be enhanced into one of death.

(3.) THE occurrence took place during the night that followed Christmas Day in 1951. The appellant belonged to Koratti and had three children by his wife deceased Eliakutty. During the second World War he got himself enlisted twice in the Labour Unit which went from this place to Assam. It would appear that since his return after his first trip to Assam he developed an illicit intimacy with an Ezhava woman by name Kunjali. Thereafter he had his board and lodge with her. Prom that time onwards he neglected his wife altogether and she had to maintain herself and the children by her own exertions and the exertions of the eldest child (P. W. 8) a girl of 16 or 17. The other two children (P. Ws. 10 and 11) are boys, one aged 13 and the other 9. The appellant's intimacy with Kunjali continued even after his return from Assam after the second trip. Some six or eight months before the occurrence he went to North Malabar in search of work. He is a wood-sawyer by profession. He was at Edoor in Eratti which was about 30 miles from Tellichery. After he left Koratti for North Malabar before the date of the occurrence he had come home only once. Even on that occasion he did not go to his house or live with his wife though he had always a soft corner in his heart for his children. Two or three weeks before the Christmas Day in 1951 when the eldest daughter fell ill he made a remittance of some money for her treatment. On 22/12/1951 he sent a sum of Rs. 10/- to her through one Velayudhan (P. W. 6) and sent word that he did not propose to come home for the Christmas but that he would be coming for the church festival at Koratti during Makarom. P. W. 6 conveyed this message to the daughter on the 41h end also gave her the money. Whether it was a case of changing his mind afterwards or ha wanted to take his people by surprise, after mid-night on the 25th of December he turned up at his house in Koratti. Gaining entrance into the house through the kitchen door he called his wife and wanted her to make bed for him in the northern room of the house. The wife and children were sleeping in the southern room. the eldest child knew of the advent of the father and also heard the father asking mother to make bed for him in the northern room. For some little time the husband shared the bed with his wife and afterwards took her out to the compound stating that the goats kept in the room were proving nuisance. Not long afterwards P. W. 8 as also P. Ws. 10 and 11 heard the cries of the mother to the effect "children come running, mother is being murdered". The cry was from the north-western part of the compound and they immediately went to that place. They found the mother lying down on her back and the father sitting on her chest and cutting her throat. When they went near the father frightened them. They therefore returned to the court-yard and raised an out-cry. Soon the appellant ran away towards the north. P. W. 8 then called the nearest neighbour P. W 2 who had married their father's sister to the place and when he came he found that Eliakutty was dead. The children told him what had happened and he also started crying aloud. Other neighbours came and one of them P. W. 26 was sent to P. W. 1, a brother of Eliakutty. On his arrival the children told him what they saw. He and P. W. 2 immediately went and informed (P. W. 21) the Panchayat President about what had happened. The Panchayat President came to the scene in the company of P. Ws. 1 and 2 when the children narrated to him what all had transpired. At his instance P. Ws. 1 and 2 went to the Chalakudy police station about five miles away from the scene of occurrence and there P. W. 1 lodged the First Information Be - port at 7 A. M. on the 26th December. After registering the case the Police proceeded with the investigation and the appellant was apprehended at Edoor on the 29th December. When the investigation was completed the case was charge-sheeted and after the usual preliminary enquiry the appellant was committed to the Trichur Sessions Court to stand his trial for the murder of his wife. We have seen what the result of the trial has been. The first question we have to consider is whether the offence has been brought home to the appellant.