OUSEPH VARKEY Vs. STATE OF KERALA

JUDGEMENT

(1.) Ouseph Varkey, the appellant in this Criminal Appeal, was convicted by the learned Additional Sessions Judge of Kottayam on two counts under S.326, I.P.C. and sentenced to undergo rigorous imprisonment for two years on each count, with the direction that the two sentences will run concurrently. The case against him was that on 30.7.1950 at about 4.30 p.m. he caused grievous hurt with a deadly weapon, to wit a dagger, on his sisters husband (Pw. 2) and on the latters father (Pw. 1). The learned Judge accepting the prosecution case convicted the appellant and sentenced him as stated above. We heard the appeal on 25.2.1957 and at the conclusion of the hearing passed orders allowing the appeal and setting aside the conviction and sentence and acquitting the appellant. That order stated that the reasons therefor will be delivered later. In this judgment we set out the reasons for the decision.

(2.) Para.2 of the judgment of the lower court states the prosecution case as follows:-

(3.) It is common ground that at the time and place mentioned by the prosecution there was an encounter between Pw. 1 and Pw. 2 on the one hand and the appellant and his deceased father on the other. It is also common ground that as a result of the attack each side made on the other the appellants father died, that the appellant himself had to remain as an in-patient in the hospital unable to follow his ordinary avocations in life for a period of 35 days and that Pws. 1 and 2 had each of them spent 45 days as in-patients in the hospital for treatment of their injuries. Though there is evidence to show that the two families have been ill disposed towards each other for some time past, the evidence as to the origin of the fight that took place between them is shrouded in mystery. The prosecution case that it started with an attack by the appellants father on Pw. 1 with a heavy stick (MO. 1) and that the appellant almost immediately joined hands with his father by hitting Pw. 1 with a piece of stone, is belied by the medical evidence in the case. Though the witnesses who spoke to the origin of the fight repeated this story with consistency and they would have it that the appellants father gave several heavy blows on Pw. 1 with MO. 1 and the appellant likewise gave several hits on him with a piece of stone, the only injury which Pw. 9, the medical witness in the case saw on the person of Pw. 1 and noted by him in Ext. P. 10, is an incised abdominal wound, the alleged infliction of which formed one count of the charge against the appellant. Including the two victims (Pws. 1 and 2) the prosecution examined six eyewitnesses. Of them Pws. 3 and 8 saw only the initial blows referred to above and where on their own showing not at the scene of the crime when the appellant is alleged to have stabbed Pw. 1 and Pw. 2 with a dagger. Pw. 6 no doubt spoke to the whole occurrence as put forward by the prosecution, but the lower court has entirely disbelieved him and in our opinion, rightly. Regarding the evidence of Pws. 1 and 2 the view taken by the learned Judge was that as they had from time to time changed their versions as to the occurrence and developed them so as to suit the exigencies of the prosecution their testimony could not be acted upon unless there was substantial corroboration from independent sources. In view of the fact that Pw. 2 was at that time standing his trial for the murder of the appellants father and they were both therefore obliged to seek to exculpate him from that crime we are not prepared to say that the lower court was wrong in thinking that their evidence should be accepted with extreme caution. The only corroboration that was forthcoming for their evidence as to the appellants complicity was the evidence of Pw. 7, who at the time of his examination on 22.10.1956 before the Court of Session was but 14 years of age. The occurrence giving rise to the case took place more than six years prior to that date when the witness was hardly 8 or 9. It is difficult to think that this boy would have recollected in October 1956 all that he saw about the occurrence in July 1950. Courts of law always view with suspicion on the testimony of child witnesses and in this case the lower court had found that certain parts of the testimony of Pw. 7 were not entitled to credence. In the circumstances we thought it quite unsafe to confirm the appellants conviction based as it was entirely on the testimony of Pws. 1, 2 and 7.