THOMMI ANTHONI Vs. SIRKAR PROSECUTOR

JUDGEMENT

(1.) THESE appeals arise out of the convictions and sentences passed by the Additional Sessions Judge, Quilon, on the five accused persons in Sessions case no. 36 of 1123 on the file of the Quilon Sessions Court. Each of them has filed a separate appeal. Thommi Anthoni, accused l has been convicted for the commission of the offence of culpable homicide not amounting to murder under part 2 of s, 303, Travaneore Penal Code, and sentenced to undergo rigorous imprisonment for four years. His appeal is Criminal Appeal NO, 35. Anthoni Vastyan, accused 5 has been convicted of abetting the conviction of the above offence by accused l and he has been sentenced to undergo rigorous imprisonment for two years. He has appealed in criminal Appeal No. 29. Augustine Yohannan, accused a has been convicted for. the commission of the offence of causing hurt with dangerous weapons punishable Under Section 324, Travanoore Penal Code and sentenced to undergo rigorous imprisonment for 18 months, made up of three consecutive sentences of 6 months each. He is found to hare caused hurt to three persons and his appeal is criminal Appeal No. 26. His younger brother Augustine Pelis, accused S has been convicted for the offence of causing hurt with a dangerous weapon and sentenced to under, go rigorous imprisonment for six months. He appeals from his conviction and sentence in criminal Appeal No. 27. Augustine Francis, the elder brother of accused 2 and 3 has. been convicted under the same section as accused 2 and 9 and has been sentenced to undergo rigorous imprisonment for 9 months. His appeal is criminal Appeal no, 28. Accused 6, appellant in criminal Appeal No. 29, is the father-in-law of accused 3. Accused l has married a paternal cousin of Accused 2, s and 4,

(2.) THE occurrence which formed the subject of the trial took place on 17-2-1122 at Manalil Kadavu, Thekkai Oberi, Tbrikkadavoor Pakuthy and the victims were four in number ; one Joseph, since deceased, and P. Ws. l, s and 7 at the sessions trial. Joseph who died as the result o/a slab he received at the hands of accused l had married a daughter of P. W. 7. P. W. 2 is another son-in-law of P. W. 7 and P. W. 1 is his (P. W. 7's) son. Accused 2 also received injuries during the course of the occurrence and with respect to that there was a countercharge against P. W8, 1, 2 and 7. That was tried as Sessions am no. 87 of 1198 on the file of the lower court. P, W. l was acquitted, bat p. We. 2 and 7 were convicted; p, w. 3 to undergo rigorous imprison. ment for six months and P. W. 7 to imprisonment of the same description for three month. Their appeals are Nos. 88 and 39 and they were heard by us immediately after these appeals. The present judgment will govern appeals Nos. 25 to 29 and appeals nos. 38 and 89 will be disposed of by a separate judgment.

(3.) IN Para. 2 of bis judgment, the learned Additional Sessions Judge has set out the prosecution case briefly and it is convenient to extract the same here. Accused 2, 3 and 4 are brothers. Accused 3 bag married accused 6's daughter, Accused 1 has married 2 to 4 accused father's elder brother's daughter, On 15-2-1122, accused 2 happened to meet P. W. 2, son-in-law of P. W. 7, in his compound when there was a quarrel between them regarding a scandal about P. W. 4, wile of P. W. 2 for having Illicit intimately with one Sanku Nair at Kanjavalii Market, and having entered his shop during day time and P, W. 2 was held up by accused 2 when accused 1 beat P. W. 2 with his band. By way of retaliation, on 17;2-ll23 at about 4-30 P. M. when accused 2 was on the shore of the ABhttmudl Lake in the south west compound of Kochuthodiyil house, at Manalil Kadavu, Thekky Cheri, Trikkadayoor Pakuthy near the house of P. W. 7 engaged in fishing, P. We. 2 and 7 approached him and questioned about the occurrence on ISth Kanni. Thereupon an altercation ensued in course of which accused 2 gave a heating to P. W. 2 with bis hand and the latter took a coocanut frond ( ) and beat accused 2 in return when accused 2 caught hold of the frond from P. W. 2 and beat P. Wa. 2 and 7. Seeing this the deceased Vasthiyau Joseph rushed to the spot from the house of P. W. 7 with a bamboo stock and beat accused 2 who immediately Snatched off that stick and beat P. Ws. 2, 7 and the deceased Joseph in return causing injuries to all the three people. At this stage accused 3 and 5 appeared on the scene and accused 6 held up the deceased when accused 1 coming from the north stabbed the deceased on his abdomen with a knife. The deceased fell down with his abdomen captured and intestines protruded. P. W. 2 immediately rushed back to his house brought a chopper and oat accused 2 on his head. Accused 2 and 8 seized P. W. 2 and accused 2 wrested the chopper from P. W. %, Accused 4 approached and taking the chopper from accused 2 gave some outs to P. W. 7 with its blunt end. Accused 2 and 3 pushed down P. W. 2 and accused 8 beat P. W. 2 and hit him with stone. On obtaining information about this incident P. W. 1 who was engaged in tailoring in his shop in the neighbouring Kan javally market came to the spot with a paddle. While he was aiming his paddle at accused 3, the latter took hold of the same and beat P. WSection 1, 2 and 7 with It. The paddle was broken. But accused 3 caused further hurt to P. W. 1 by biting and bitting him with atone. Then all the accused ran away. The injured persons 1, e. , P. Wb. 1, 2, 7 and the deceased Joseph -were-taken to the local police station at about 8--B0 P. M. on that day and as the injuries on the deceased Joseph were very serious he was immediately sent to the local District Hopual for treatment and the Inspector of Police recorded the statement there (Ex. ADI) Vasthiyan Joseph succumbed to the injuries at 11 P. M. on 17-2-1122 Inquest was held by P. W. SI, the Police Inspector on the dead body of Joseph and Ex. AD, body mahasar was also prepared. P. W. 8 the Resident Medical Officer of the Quilon District Hospital conducted the post-mortem and issued Ex. Ii post-mortem certificate on the next day. Exhibit scene mahazar was prepared by P. W. 31 on 18-2-1122 and the case was charge-sheeted on 13-3-1122. After the preliminary enquiry by the local Second Class Magistrate the accused have been committed to this Court to stand their trial. The accused plead not guilty. To the above narration it may be added that P. W. 31, the Inspector of Police had before registering the case against the accused and immediately after recording Ex. ADI also recorded the statements of P. Ws. 2 and 7. Those statements were got signed by them and they have been marked here as exb. b (p,w. S) and (p. w. 7 ). The case as presented before the Sessions Court of which we have a short resume in the above extract varies from Exs. B and Q in one important detail. According to exs. b and a, P. W. 2 ran back to his house and returned to the scene armed with a chopper before Joseph was stabbed by accused l or even before accused S and 6 had appeared on the scene, At this stage it may also be mentioned that Ex. ADI is silent with regard to the above, viz. , the chop, per episode nor does that document state how the occurrence started. Exhibit ADI starts the narration from the stage accused 2 beat back P. W. s with the frond.