THOMMEN Vs. STATE OF KERALA

JUDGEMENT

(1.) The accused in sessions Case No. 21/1956 on the file of the Additional Sessions Judge at Kottayam was tried for the offence of murder punishable under Section 302, Indian Penal Code. The learned Additional Sessions Judge found that the acts attributed to the accused have been proved by the prosecution, but that such acts which culminated in the death of the victim Augusty Varkey alias Kunjootty, did not constitute the offence of murder. It was further found that the accused was acting in the exercise of his private defence and that in inflicting the several stabs on Kunjootty the accused had exceeded the right of private defence. Accordingly, the learned Additional Sessions Judge held that the accused was guilty of culpable homicide not amounting to murder and convicted him under the First Part of Section 304 of the Penal Code and sentenced him to undergo rigorous imprisonment for 10 years. Against such conviction and sentence the accused has preferred Criminal Appeal No. 20/1957. The other appeal is by the State, urging that the conviction of the accused should be under Section 302 itself.

(2.) The accused in this case had married Pw 5 Marry alias Chinna while she was very young and both of them were living in Chinna's Panachikkalparambu House in Bharananganam Muri in Bharananganam Pakuthy. The situation of this house and also of the lane running east to west, a little to the north of this house, is shown in the sketch Ext. P. 16. While the accused and Chinna were living in the house marked B in the sketch, deceased Kunjootty developed an Intimacy with Chinna and very soon thereafter he took up his residence in Panachikkalparambu house after driving away the accused from that house. Kunjootty was a well-known rowdy of the locality and the accused who had not the courage to resist the unlawful acts of Kunjootty, had to go away from that house to his own mother's house. Kunjootty was thus able to keep Chinna as his concubine and this relationship continued for about 6 or 7 years. Three children were born to Chinna from Kunjootty who had other children born to him through his legally wedded wife. His wife and children were residing in his own house about a mile away from chinna's house. The priests attached to the Parish Church resented the conduct of Kunjootty and they persuaded him to leave Chinna alone and to come away to his own house. As a result of their interference in the matter, Kunjootty went back to his own house taking with him, the first two children born to him in Chinna. This took place just about two weeks prior to the occurrence in this case which was on 6-1-1955.

(3.) After Kunjootty had thus shifted his residence from Panachikkalparambu House, the accused effected a reconciliation with Chinna and began to stay with her. She was then in a state of advanced pregnancy and she delivered the third child born to her through Kunjootty only 18 days after his death. On the evening of 6-1-1955 Kunjootty again went to Panachikkalparambu House at about 8 P. M. and enquired of Chinna if the accused was visiting her. On getting an affirmative answer from her, he became angry and told her that the accused should not be allowed to come there. By that time the accused also came there and on seeing him entering the courtyard, Kunjootty called out to him not to come in but to get away from the place. So saying, he rushed up towards the accused and inflicted 3 or 4 blows on him. The prosecution case is that it was in such a situation that the accused took out his knife and inflicted a series of stabs on Kunjootty. After receiving these stabs, Kunjootty moved on to the lane and there fell down at the spot marked A in Ext. P. 16 and died within a short time.