CHINDAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) This is an appeal preferred by the accused in Sessions Case No 14/1956 on the file of the Sessions Court at South Kanara, questioning the sustainability of the conviction entered against him under S.302 of the Indian Penal Code and the sentence of life imprisonment awarded to him. The charge against the accused is that on the morning of 4th February 1956, he murdered his uncle Kunhambu Nair by shooting him with the gun which has been recovered and marked as M. O.1 in the case. The act is admitted by the accused in his statement given by him before the Sessions Judge and the only plea of the accused is that he committed the act under grave and sudden provocation and as such the act cannot amount to the offence of murder punishable under S.302. In the appeal memorandum also the same plea is reiterated and it is urged that the conviction of the accused should only be under S.304 and not under S.302 of the Penal Code.

(2.) At the time of the occurrence, the accused along with his wife Kamalakshy, who has been examined as Pw. 2 in the case, was living with his uncle Kunhambu Nair and his wife Pw.1 in the same house. The position of this house and its surroundings is shown in the sketch Ext. P. 9 prepared by the investigating Officer who has been examined as Pw. 11. Kunhambu Nair was as agriculturist and in his work of cultivation he was being assisted by the accused. For about a year prior to the date of the occurrence, Kunhambu Nair could not go out for work as he was suffering from an ulcer on his leg and the entire work was being attended to by the accused himself. He married Pw. 2 about 8 months prior to the date of the occurrence and some time later he began to suspect the fidelity of his wife. He had a strong suspicion that his uncle Kunhambu Nair and Pw. 2 were on terms of illicit intimacy and had even complained about it to Pw. 4 an influential neighbour to these people and had requested him to ask Kunhambu Nair to arrange for a separate residence for the accused and his wife. But nothing came out of such a request. The gun M.O. 1 belonged to Kunhambu Nair. It is a muzzle loading gun and it was being used by the accused also for shooting pigs and other animals coming to destroy the crops raised by these people. For the purpose of guarding such crops the accused had frequently to go out to the fields during night time. On the night of 3rd February 1956 he went out as usual with the gun M.O.1 and returned only by about day-break next day. Pw. 1 the wife of Kunhambu Nair was sleeping with her children in the main room of their house. It was only 28 days after her confinement and she was also ill. Her husband Kunhambu Nair was sleeping on the varandah to the north of the main room and the door leading to that verandah from the main room was left; open. Pw. 2 was sleeping in the kitchen room on the western portion of that house. Pw. 3, the servant boy in that house, was also sleeping on the northern verandah. According to the prosecution, this was the situation when the accused returned home at about day break on 4-2-1956. He got on to the front verandah of the house and called his uncle Kunhambu Nair who woke up and sat on his bed. The accused talked to Kunhambu Nair about his illicit intimacy with Pw. 2 and then shot Kunhambu Nair on his abdomen with the gun M. O.1. The victim fell back on his bed. Even before the firing of the shot Pw. 1 who had heard the threatening words uttered by the accused, had called out to him not to shoot her husband and thus render her helpless. This appeal had no effect and before Pw. 1 could do anything further, the shooting took place. Pw. 3 who woke up on hearing the shot, saw Kunhambu Nair lying wounded and the accused standing on the verandah with the gun M. O.1 in his hand. Pw. 2 also woke up and came out from the kitchen room and witnessed the same situation. Pw. 1 directed Pw. 3 to the nearest neighbour Pw. 4 and he rushed to the spot. He was told by Pws. 1 to 3 and Kunhambu Nair that it was the accused who shot Kunhambu Nair. Pw. 4 and others who had gathered at the spot, removed Kunhambu Nair to the Government Hospital at Kasargod where his dying declaration Ext. P. 7 was recorded by Pw. 8 who was at that time the Sub-Magistrate at Kasargod The victim died at 11 a. m. The fact is proved by the Medical Officer, Pw. 6, who conducted the post mortem examination of the body of Kunhambu Nair and issued the autopsy certificate Ext. P. 5. At the autopsy, the pellet M. O.6 and the fibre wad M. O.7, were recovered from inside the body of Kunhambu Nair. Pw. 12, the Fire Arms Expert has stated that M. 0. 6 and M.O. 7 could have been discharged from the gun M.O. 1. The pellet M.O. 8 and the fibre wad M. O.9 were found on the mat on which Kunhambu Nair was setting when he was shot and on which he fell down on being hit by the shot. M. Os. 8 and 9 were recovered by the Sub-Inspector Pw. 11 when he prepared the scene mahazar Ext. P. 10 a few hours after the occurrence. It is conclusively established by these items of evidence that Kunhambu Nair received a gun shot wound on the morning of 4-2-1956 and that he died as a result of that wound at 11 a.m. on the same day. In the autopsy certificate Ext. P5, the cause of death of Kunhambu Nair is mentioned as internal haemorrhageand shock due to gun shot wound on the abdomen. This opinion is confirmed by Pw. 6 who has further stated that the injury sustained by Kunhambu Nair was a fatal injury and that he must have been shot from a close range i. e, from a distance of 3 or 4 feet,

(3.) As already stated, the accused himself has stated in his statement that he shot Kunhambu Nair on the early morning of 4-2-1956. The evidence of Pws. 1 to 4 and the statement of Kunhambu Nair in his dying declaration Ext. P. 7, also go to confirm this fact. Pw. 1 who was sleeping in the main room of the house, woke up on hearing the accused questioning Kunhambu Nair about his illicit intimacy with Pw.2. Since the door of that room leading to the verandah was let open, Pw. 1 was also able to see what transpired at the verandah. After waking up Kunhambu Nair from his sleep, the accused asked him as follows: Are you not satisfied with lying with my wife Kunhambu Nair asked the accused by way of reply: Who told you that The accused retorted by saying No one told me. I myself have come to know of it. Then Kunhambu Nair asked the accused: What are you going to do me about it. The accused replied: I will shoot you. It was at that stage that Pw. 1 called out to the accused Chinda, dont render me helpless. But this appeal was of no avail and the accused straightway fired the shot at Kunhambu Nair who fell back on his bed on receiving the shot. All these facts have been clearly sworn to by Pw. 1 and we see no reason to doubt the correctness of the version given by her. Hearing the sound of the shot and also the cry of Pw. 1, Kamalakshi, the wife of the accused, woke up and opened the door of the kitchen room and rushed to the front verandah and saw the accused standing there with the gun in his hand while Kunhambu Nair was lying on his bed with a wound on his abdomen. The servant boy Pw. 3 who was lying on the eastern side of the verandah also woke up on hearing the gun shot and he too saw the victim lying on the bed and the accused standing by with the gun in his hand. Nothing has been brought out in the cross examination of Pws. 2 and 3 to discredit their evidence which fully corroborates the evidence given by Pw. 1. Pw. 4 who came to the scene soon after the occurrence, has also stated that he was told by both Kunhambu Nair, and Pw. 1 how the accused had shot Kunhambu Nair. In the dying declaration Ext. P. 7 also Kunhambu Nair has stated that the accused woke him up on the early hours of the day and after telling him that he will shoot him, fired the shot at his abdomen. Consistent with these items of evidence, there is also the admission of the accused as to having shot Kunhambu Nair on the morning of 4-2-1956.