STATE Vs. OUSEPH

JUDGEMENT

(1.) MANAKKA Parambu of Purayidom is a big compound which lies slopping from south to north. On account of its slopping nature the compound has been terraced, and at the time of the occurrence some of the upper terraces were under tapioca cultivation. The tapioca was planted by lessees, one of whom was P. W. 7, father of P. W. 6. The plot to the north of the plot planted by Pw. 7 was in the possession of one Kuruvilla, and that plot was also under tapioca cultivation at the time of the occurrence. To the north of, that is to say, below, Kuruvilla's plot there was a low stone-bund running right across the property from east to west and the land below the bund was lying vacant without any cultivation. Through that vacant land there was a trace, or foot-path, coming from east to west and joining a lane on the western side of manakka Purayidom. In Ext. N sketch the trace, or foot-path, running through the vacant land from east to west is shown by a dotted line, and the lane to the west of MANAKKA Purayidom is shown as a foot-path lying between MANAKKA purayidom and Kottuparambu Purayidom. The trace running through MANAKKA purayidom from east to west crosses the lane or foot-path mentioned above and continues westwards through Kottuparambu. In Kottuparambu there is a house a little to the south-west of the point where the trace enters that compound after crossing the lane. P. W. 4 lives in that house. The scene of occurrence in this case is said to be a spot on the trace running through the vacant land in manakka Purayidom about 52 feet to the west of the house of P. W. 4. Point D in ext. N plan is the spot where the occurrence is said to have taken place, and point A is the house of P. W. 4. P. W. 7 and his daughter, P. W. 6, live in the house shown as, point C in Ext. N plan, about 390 feet to the north-east of point D.

(2.) THE prosecution case in the Sessions Court was that while the deceased Chacko was returning home from his shop at about 7. 30 P. M. on 17. 10. 1951, the 2nd accused struck down the torch which Chacko had in his hands and the 1st accused stabbed him with a pen-knife on the abdomen and right arm and that Chacko died at about 1-15 A. M. that night in the Vaikom Government hospital as a result of the injuries inflicted by the 1st accused. According to the prosecution, there was previous enmity between the 1st accused and Chacko on account of the latter having taken some part in an arbitration concerning the theft of a buffalo committed by the 1st accused and one of his friends a few days before the occurrence. As a result of that arbitration the 1st accused had to pay about Rs. 200/- to the owner of the buffalo and at the close of the arbitration Chacko had also suggested that the 1st accused should be handed over to the Police. It is alleged that on the date of the occurrence Chacko had gone from his shop to the house of one of his sons and that at the time of the occurrence he was returning home in the company of one of his relatives, Pw. 5, carrying a lighted cadjan torch. THEy are said to have come from the north, southwards through Manakka Purayidom, and after crossing the stone-bund and striking the trace to have turned westwards and proceeded westwards along the trace. Pws. 6 and 7 claim that when Chacko and Pw. 5 were coming southwards they themselves were standing in the court-yard of their house and that suspecting that poachers were in the tapioca cultivation on the northern side of the stone bund they came to their plantation and saw from there the 1st accused stabbing Chacko. Pw. 4 claims that immediately after the occurrence he heard Chacko crying out to him that the 1st accused had stabbed him and that on hearing this cry he ran to point D. According to Pw. 4, he came upon the injured Chacko a little to the west of point D, and at that spot Pw. 6 also joined him. While they were bandaging Chacko's injuries other persons also came to the spot. Chacko was subsequently removed from there to the hospital where he died after making two statements, one to the Police, which is Ext. B, and the other, which is Ext. E (1), to the Taluk Second Class Magistrate, Vaikom. THE accused's plea was one of total denial. THEy contended that they had nothing to do with the occurrence and had been falsely implicated. Besides Pws. 5, 6 and 7 mentioned above the prosecution examined Pws. 10 and 14 also as eye-witnesses. THE learned Sessions judge acquitted the accused holding that the evidence of Pws. 5, 6, 7,10 and 14 was unreliable and that Ext. E (1) could not be legally acted upon as it was not recorded by a Magistrate who was empowered to record statements under S. 164 of the Code of Criminal Procedure.

(3.) SO far as the evidence of Pws. 5,10 and 14 is concerned, the appreciation of their evidence by the Sessions Judge cannot be said to be perverse or entirely unjustifiable. It is true that Pws. 6 and 7 say that they saw two persons coming from the south through Manakka Purayidom, and therefore it is highly probable that Pw. 5 also was coming with Chacko at the time of the occurrence. But Chacko was not seen at the spot when Pws. 6 and 4 ran up to the place after the occurrence. They do not say that they found him there, and admittedly he was not one of the persons who took Chacko to the hospital. He has also not attested the mahazar drawn up by the Police regarding chacko's injuries. From these circumstances it is but legitimate to infer that pw. 5 might have taken to his heels when the assailant or assailants began the attack on Chacko and struck down his torch and that he has not actually seen the 1st accused stabbing Chacko. The discrepancies in their evidence pointed out by the learned judge in paragraphs 22 and 23 of his judgment are sufficient to discredit Pws. 10 and 14 and to make one suspect that they also might not have seen the occurrence.