AYYAPPAN ALIAS APPU Vs. STATE OF KERALA

JUDGEMENT

(1.) A husband and wife were charge sheeted for the murder of Kunjan the brother of first accused under Sections 302 and 323 read with Section 34, IPC. First accused husband was found guilty for the offence under Section 302, IPC. Second accused, his wife was acquitted of all charges. First accused filed this appeal. Prosecution case was that accused 1 and 2 along with children and father of first accused were residing in the 'tharawad house at Aayappara, Kottappady Panchayat. Father of A1 was bed ridden on account of paralysis.

(2.) P.W. 11 gave evidence that while he was the Sub Inspector of Police, Kottappady first accused came to the police station with a blood stained knife (MO. 1) and stated that he had stabbed his elder brother and the knife seen in his possession was seized as per Ext. PS mahazar. Immediately P.W. 11 proceeded to the scene of occurrence and recorded Ext. P1 statement given by the wife of the deceased and Crime No. 3/97 was registered. However, F.I. Statement reached the Magistrate at 5.30 p.m. Ext. P5 is the scene mahazar prepared by C.I. of police and material objects such as chappal, sheath of knife, wrist watch and burned out candle, a kerosene lamp and blood stained soil were recovered from the scene of occurrence. P.W. 2 doctor who conducted postmortem has stated as follows :

(3.) There is no serious contradiction between Ext. P1 and deposition of P.W. 3 before the Court. P.W. 3 is the daughter of Kunjan. She deposed that while she was studying her lesson she heard the cry of P.W. 1 from the tharawad house. She rushed therein. Version of P.W. 1 also corroborated with the story of P.W. 3. P.W. 4 is the neighbour who came from the neighbourhood hearing the cry. He bandaged the injuries of the deceased and had taken the deceased to Government Hospital, Kothamangalam and since he was not admitted therein he was taken to Dharmapuri hospital, Kothamangalam where he died. The accused in his 313, Cr. P.C. statement stated that they shifted their residence from the tharawad house because the eldest brother Thankappan and the second brother used to come to that house late in the night fully drunk and they used to quarrel with the accused. On the date of occurrence they came in the morning for seeing their father and they were sitting in the verandah of 'tharawad' house when Kunjab returned from the place of his work by 7.30 in the night. P.W. 1 slapped second accused on her cheek Kunjan held first accused tightly and first accused tried to wriggle out and there was a tussle. In the tussle his hand was hurt and the accused " left the place and went back to their rented house. It will show that the place of incident and time of incident etc. are not disputed. In F.I. Statement as well as in cross-examination it is revealed that apart from first and second accused, deceased and his wife were only present at the time of stab and nobody else was present. There was a tussle between first accused with the deceased and P.W. 1 and second accused intervened. Some minor injuries were caused to second accused as well as P.W. 1. It was contended that there was no motive for the incident. When there is ocular evidence motive is not very important. Here, motive is spoken to by the accused themselves that there were disputes regarding sharing of the property. If they came in the morning to see the father there was no necessity to wait till 7.30 p.m. The fact that deceased came at 7.30 p.m. is also admitted. According to prosecution as well as the defence tussle started when the deceased asked first accused regarding his return to tharawad house. The second contention is that there was no light. But kerosene lamp and candle light were there for identification. It has come out in evidence that earlier the deceased and P.W. 1, the wife of the deceased and first and second accused were residing together in the house. Close relatives can recognise each other even in darkness here there was sufficient light also. The presence of the accused is not disputed by them.