T S JOHN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the accused in Sessions Case No. 30 of 1981 on the file of the Additional Sessions Judge, Mavelikkara. He is being tried for the offence of murder of his wife during the night between 19th and 20th January, 1981 by applying force and thereby strangulating her neck. His mother had been cited as a witness and before she could be examined, she died. During investigation, her statement had been recorded by a competent Magistrate under S.164 of the Code of Criminal Procedure (for short 'the Code'). When the investigating officer was examined in the course of the trial, the Public Prosecutor made an attempt to prove and mark the statement of the mother recorded under S.164 of the Code. The admissibility of the document was objected to by the defence. However, the learned Sessions Judge overruled the objections and allowed the document to be proved and marked, as admissible under S.32(3) of the Indian Evidence Act (for short 'the Act'). Ft is the legality of this order which is challenged by the accused in this revision petition.

(2.) Ordinarily, I would not have been inclined to go into the legality of the order in revision even while the trial is pending in the Sessions Court; however, I think it is necessary to do so in view of the importance of the question involved in the case.

(3.) The prosecution case is that sometime between 10.30 p.m. on 19-1-1981 and 6.30 a.m. on 20-1-1981 the revision petitioner committed the murder of bis wife by strangulating her. The mother, whose statement was recorded under S.164 of the Code, was not an eye witness. In her statement, she stated that about three months previously at about 9 p m. her husband went to the Pandalam market taking two plantain bunches with him. Her son John (revision petitioner) was not in the house She and her daughter inlaw Kunjumol took food. At about 10 p.m., revision petitioner came and went to his bed-room where be and bis wife used to sleep. Kunjumol got up and was seated on a cot. Revision petitioner went out, washed his feet and took food served by her. Thereafter, he went to his bed-room and bolted it from inside. She also went to bed. Next morning at about 6 a.m. she got up and busied herself in milking her goat. When she was coming back to the house, the revision petitioner opened the door of the bed-room, came out and ran away to the purayidam. Seeing that the daughter inlaw was not coming out of the bedroom she went there and called her. She found Kunjumol lying dead. She asked the revision petitioner what happened and he said he did not know. He went to call his paternal uncle who rushed there along with his wife and children. Her husband's brother went away to give information to her husband. The neighbouring ladies also came and washed the dead body after taking the dead body to the courtyard. Later Kunjumol's relations came there and said they had suspicion and gave information to police. Police arrested her and her husband. She did not know anything else. The case was registered as a case of suspicious death.