VISWAMBHARAN Vs. STATE

JUDGEMENT

(1.) These appeals arise from the conviction and sentence passed in S. C. 81 of 1972 on the file of the Sessions Judge, Trivandrum. The accused Chellappan Viswambharan was charged under S.302 IPC. with the murder of one Babu alias Sreedharan by stabbing him with a knife at 7-30 P.M. on 4 8 1972. On an analysis of the evidence and circumstances of the case, learned Judge was persuaded to the view that the act was committed by the accused under grave and sudden provocation and accordingly he has convicted the accused of culpable homicide not amounting to murder, and sentenced him to Rigorous Imprisonment for seven years under S.304 Part II, IPC. Dissatisfied with this, the State has filed Crl. Appeal 260 of 1973, pressing for a conviction under S.302. Crl. Appeal 109 of 1973 is by the accused against the conviction and sentence passed on him.

(2.) The occurrence took place, as already stated, at 7-30 P. M. on 4-8-1972 on the public road in front of Pw. 7's shop. Deceased Babu and the accused were moving on inimical terms for some time before the occurrence. One Gangan was involved in a criminal case, and he was released on bail from the court through Babu's help. Gangan being the accused's enemy, the conduct of Babu in getting him released on bail by Babu, was not liked by the accused. On this matter, there was a wordy quarrel at about 5 P. M. on 4-8-1972. Later, at about 7-30 P. M. while Babu was proceeding along the lane leading to the road in frant of Pw 7's shop, he was met by the accused, and the latter in a fretful tone asked Babu if be would scold him in case he said that he helped Gangan in getting bail. Babu retorted suitably. Getting himself exasperated, the accused took M. O.1 knife from under his waist, and inflicted a stab on Babu which hit him on his chest above the nipple. Babu smarting under pain, pressed his chest with his left band when the accused pulled back his knife and took to his heels. Babu's brother Pw 1 happened to come there at the time and see the accused escape from the scene with the knife. Babu was immediately taken to the General Hospital, Trivandrum in a taxi. Before they reached the hospital, Babu died. Pw 1 then rushed to the police station and lodged F. I. statement. The accused was arrested on 10-8-1972 at about 3.30 P. M. On the basis of the information supplied by him M. O. 1 knife was recovered from the spot pointed out by him. The accused denying the charge, stated that he was in police custody from 4-8-1972 and was produced before the Magistrate only on 11-8-1972. On 4-8-1972, he had gone to the police station to complain to the police that Babu had inflicted injuries on him, and it was then that be was arrested and placed in police custody. To the learned Sessions Judge the injuries were shown by the accused at the time he was examined under S.342 of the Code. Learned Judge has observed in the judgment that the accused showed him a scar on the inner aspect of the right fore arm and an abrasion about 2" in length on the left upper chest.

(3.) There are difficulties in accepting the prosecution version of the occurrence. Pws. 2, 3 and 4 are stated to be eyewitnesses. Of these Pw 3 has turned hostile. Pw. 3 is a person who is running a laundry near the scene of occurrence, and Pws. 2 and 4 according to them saw the occurrence from a nearby house. The name of Pw 3 as a person who was present near the scene was mentioned by the accused in his 342 statement. Pw 3 therefore, would have been a more competent witness than the other two, but his evidence somehow, is not helpful to the prosecution. According to Pw 2, at the time of the occurrence he was present in Pw 4's house, and they were chatting from the verandah of the house. For what purpose Pw 2 had gone to Pw 4's house was not stated by him. So far as Pw 4 is concerned, he had no interest in the house where he was stated to have been present at the time. His house is in Nedungad, some distance away from the scene. The house where himself and Pw 2 happened to be present at the time of the occurrence according to them, belongs to his mother's sister. She is residing there and Pw. 4 evidently had no purpose in going there that night. It is also difficult to believe that from that house which is some distance away from the place of occurrence, they were able to see the occurrence in that night.