KOCHUKUNJU Vs. STATE

JUDGEMENT

(1.) Kantan Kochukunju alias Kutten, Accused No.1 in Sessions Case No.6 of the 1953 on the file of the Mavelikara Sessions Court, has preferred Criminal Appeal No.124 against his conviction by the learned Sessions Judge of that court for committing an offence of culpable homicide not amounting to murder falling under the second part of S.304 I.P.C. and the sentence of two years rigorous imprisonment passed in respect thereof. His elder brother Kantan Narayanan was Accused No. 2 in the said case. The case against Accused No. 1 was that he caused the death of one Podiyan by stabbing him with a pen knife in the region of his chest. The trial was for committing murder but the learned Judge while finding that Podiyan died as a result of the stab accused No. 1 inflicted on him held that the case fell within Exception 4 to S.300 I.P.C. and that the offence therefore only amounted to one under S.304(2). In awarding punishment to Accused No. 1 the learned Judge said that considering the low strata of society to which the accused belongs and other circumstances disclosed in the case a sentence of two years rigorous imprisonment will meet the ends of justice. Accused No. 2, the elder brother was alleged to have abetted the commission of murder by Accused No. 1, besides having given a blow with a stick to the deceased Podiyan. The learned Judge acquitted him of the charge of abetment of murder but found that he had inflicted hurt to the deceased with a stick and accordingly convicted him of the offence under S. 323 and sentenced him to undergo rigorous imprisonment for one month. The sentence is non appealable and we are not concerned with Accused No. 2 here. The State feeling aggrieved by the acquittal of Accused No. 1 on the charge of murder has preferred Criminal Appeal No. 134. The memorandum of appeal by the State also complains that even assuming that the offence Accused No. 1 committed would only fall under S. 304, Part II, the sentence of two years rigorous imprisonment is in the circumstances of the case grossly inadequate. We have therefore before us the appeal of Accused No. 1 against his conviction and sentence and the State's appeal against the acquittal of Accused No. 1 on the charge of murder.

(2.) The occurrence complained of took place at about 3 p.m. on 22nd November 1951 at the Pathayapara Reserve Forest near Konni. Accused Nos. 1 and 2 were at the time cow-herds employed by one Madhavan Nair of the Konni Agricultural Colony. Podiyan, the deceased, was also a cowherd and he was working under Pw. 1 who also belong to the said agricultural colony. It would appear that the relations of the two brothers Kutten and Narayanan on the one hand and Podiyan on the other were far from cordial for some time prior to the day Podiyan met with his end. On 23rd November 1951 when these three persons and some eyewitnesses to the occurrence were herding their cattle in the Injipara and Pathayapara Reserves the accused persons removed from the necks of two cattle herded by Podiyan four Kotties and that paved the way for the subsequent events. Podiyan protested against the said unauthorised action of Accused 1 and 2 and went after them to get back the kotties removed by them. He first caught hold of the kotties in the hands of Accused No. 2 but he then threw them away down a steep incline in the wild forest. Podiyans attempt to get the kotties in the hands of Accused No. 1 was equally unsuccessful as the latter also threw the kotties away. Exchange of bad words took place between them and that was soon followed by a scuffle. Accused No. 2 then gave a blow on the right side of Podiyans neck with stick used by him for herding cattle. Podiyan raised his hand to hit back but Accused No. 2 caught hold of Podiyan and kept him within his hold from behind. While Podiyan was in that helpless condition accused No. 1 took out his knife from the fold of his loin cloth, opened it and availed of the situation to inflict a stab on Podiyans chest. As blood gushed out the persons ran away. Podiyan also ran for some distance but he soon fell down on the road close by. His companions Pws. 2 and 3 who saw the occurrence and knew that Podiyan had died almost instantaneously, immediately reported the incident to Pw. 1s house. Pw. 1 was absent at Pathanamthitta but when he returned in the evening he went to the scene of the crime and saw Podiyans dead body. Next morning report was made to the Police about the incident. They proceeded to the spot and held the inquest over the dead body. Afterwards the Medical Officer in Charge of the Dispensary, Konni, conducted the autopsy. During the course of the investigation the accused persons were apprehended and in due course the Police filed the charge sheet. After the preliminary enquiry by the Pathanamthitta Magistrate the accused persons were committed to the Mavelikara Sessions Court to stand their trial. Mention has already been made as to how the trial ended.

(3.) There is ample evidence in the case that Podiyan died as the result of the stab-wound he sustained at the hands of accused No. 1. Though before the lower court a suggestion was made that one Thomma, a semi-crack, inflicted the injury on Podiyan that was not persisted before this court. The accuseds memorandum of appeal in Criminal Appeal No. 124 is more a plea for mitigation of the sentence than a denial of the commission of the crime. He states there that he waved the knife in self defence. But there is absolutely no material to support it. Such a case sees the light of the day for the first time in the said memorandum. The eyewitnesses to the occurrence are Pws. 2 to 5 and the learned Judge has discussed their evidence in detail and has come unhesitatingly to the conclusion that they are witnesses of truth, that they saw the occurrence and that their version as to the circumstances under which accused 1 stabbed Podiyan has to be accepted. We have heard Mrs. Fatima Abdhurahimans arguments on behalf of the accused and also carefully persued the depositions. We are unable to come to a different conclusion from that arrived at by the court below that the accused inflicted the stab-wound of which Podiyan died. The learned Judge before whom the witnesses were examined have been impressed with their demeanour and he has made special mention of it in his judgment. It was Pws. 2 and 3 who carried the news about the incident to Pw. 1s house. Besides the four eyewitnesses mentioned above Pw. 6, another cow-boy, said that he heard a cry from the direction of the scene of the offence and when he went there he saw the accused persons running away and Podiyan falling on the road. Soon afterwards he found that the latter was dead.