PAYI Vs. STATE

JUDGEMENT

(1.) THE case for the Prosecution may be briefly stated: the first accused has three sons, Pw. 1, Raghavan and the second accused. THE first accused's father (Ayyappan) owned some properties and he bequeathed the same to his grand-children so that the first accused did not get any interest in his father's properties. After the death of Ayyappan and his wife. Pw. 1 took possession of the properties. Raghavan was for several years in Ceylon and the second accused in Madras. About one year before the incident Raghavan returned to his house and demanded his share of the properties. This led to disputes between Pw. 1 and Raghavan and the latter instituted a suit, O. S. No. 142 of 1957, in the Munsiff's court of Chowghat for partition. He obtained an order appointing a receiver for the properties but this was set aside in appeal. He had preferred a civil revision petition before the high Court and the same was pending when the incident, which has given rise to this case, happened on 21-8-1958. According to the Prosecution Pw. 1 returned home from his grocery shop for taking the mid-day meal and after taking the same, he went to the southern verandah of his house where he lay down and slept. Accused 1 and 2 then conspired to murder Pw. 1 in his sleep and the first accused proceeded to the southern side and attacked Pw. 1 with a chopper, inflicting four incised injuries on his body. THE second accused is stated to have been present close-by. On receiving the first cut Pw. 1 woke up and when he tried to get up, he was attacked again, the last cut being inflicted when he had just got down from the verandah to the court-yard. Accused 1 and 2 as well as some other relatives were, supporting Raghavan in the civil suit against pw. 1 and it is alleged that on account of such enmity the first accused who was obliged to live with Pw. 1 did the act, abetted by the second accused. THE incident happened at about 4 P. M. on 21-8-1958 and Pw. 1 was removed to the hospital which he reached at about 5. 30 P. M. THE medical officer (Pw. 3) gave in formation to the Police, and the Sub-Inspector of Police went to the hospital but could not record a statement of Pw. 1 as he was not in a fit condition to give one. Pw. 6, a neighbour and a first-cousin of Pw. 1, who had accompanied him to the hospital gave a statement (Ext. P7) to the Police on the basis of which the Police registered a case and started investigation. As the condition of Pw. 1 was dangerous, his dying declaration (Ex. P3) was recorded by the magistrate at 7. 30 P. M. that night. THE Police prepared a scene mahazar (Ex. P9) and recovered the chopper on information given by the accused. THE case was duly charged before the First Class Magistrate, Trichur, who committed accused 1 and 2 to stand their trial. THE learned Sessions Judge convicted the first accused and sentenced him as stated above. THE second accused was acquitted.

(2.) THAT Pw. 1 sustained injuries at about 4. 30 P. M. on 21-8-1958 was not disputed. This fact is proved by the testimony of Pws. 1 to 4 and 6 and the wound certificate (Ex. P5 ). It is seen from Ex. P5 that he had four incised injuries noted below: (1) An incised wound 6" in length right across the left axilla cutting the skin, superficial fascia, deep fascia, number of small blood vessels and nerves exposing all the axillary vessels and nerves and muscle tendons. (2) An incised wound 3" x 1/2" on the right side of the chest extending from the right sternoclavicular junction across the right clavicle. (3) Another incised wound 41/2" in length with the skin, superficial and deep fascia cut off exposing a flap (flap 2") below the left lower jaw. (4 ). Another incised stab wound 1" x 1/2" deep on the posterior aspect of the left shoulder. According to the medical evidence these injuries could have been caused with a chopper like M. O. 1. It is also in evidence that Pw. 1 was in the hospital for over twenty days.

(3.) THE plea of private defence is sought to be made out from the admission of Pw. 2 that one of the pestles in her house bore a mark. It is significant to note that the first accused had no marks of injury on his body even though his case was that he was beaten with the pestle. It is extremely doubtful whether he would have been in a position to inflict all these injuries if he had actually been attacked by a such younger man like Pw. 1 with a wooden pestle. THE medical evidence is that the second in jury must have been inflicted before Pw. 1 stood up. THE accused examined two witnesses to prove that when they came to the scene after the incident, they saw a pestle in the court-yard. THEir evidence was read out to me and the same appeared somewhat artificial. THEy were disbelieved by the learned judge, and I do not see any reason to come to a different conclusion. In these circumstances I hold that the plea of private defence has not been made out.