KUNJARU Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is directed against the conviction of the appellant by the Sessions Judge at Palghat, under S.302, I. P. C, for having caused the death of his elder brother Chami on the night of the 17th March 1958, by cutting him on his neck with a chopper, called also a tapping knife; he has been sentenced to undergo rigorous imprisonment for life. The appellant was living with his father pw. 1, his mother pw. 4 and his brothers Chami and pw. 3 and Chami's wife pw. 2, in their house till about a week before the occurrence, when he and pw. 4 removed themselves to the house of a neighbour pw. 5. The case for the prosecution was, that the appellant was on terms of ill will towards Chami for various reasons which may be mentioned later, and that, on the night in question, when Chami and pw. 3 were sleeping on two benches placed in the front courtyard of their house, the appellant came there after midnight, and cut Chami with M. O. 1 chopper, used for tapping palmyra trees, on the neck and also on the left upper arm and on the dorsum of the left hand. pw. 1 was sleeping on the front verandha of the house not far away from where Chami lay. pw. 2, the widow of Chami, was sleeping in the inner verandha. Both pws. 1 & 2 were roused by Chami's cries, and they witnessed the appellant inflicting the cuts on him, and escaping from the scene. pw. 3 also was roused from sleep and witnessed the act.

(2.) THE alarm raised by pws. 1, 2 & 3 brought pw. 5, followed by pw. 4, to the scene. Chami, who was struggling, had been laid on the ground, and pw. 5 gave him some water to drink. Chami expired shortly after. On the next morning, pw. 1 gave information about the occurrence to pw. 13, the amsom Adhikari, implicating the appellant for the murder. THE statement which was recorded by pw. 13 and which has been proved to be Ext. P. 1 was forwarded by pw. 13 to the Palghat Cusba Police Station, where pw. 17, the Sub-Inspector of Police, received it at 11 A.M., and registered a case under S.302, I. P. C. At about 11-15 A. M., the appellant presented himself at the Police Station, and was taken into custody. pw. 18, the Circle Inspector of Police, who had been intimated, proceeded to the scene of occurrence, and held an inquest over the dead body. On the same day, pursuant to information furnished by the appellant, the chopper M. O.1 was recovered from a channel, about two furlongs away from the scene, where it had been buried. On the next day, the post mortem examination was conducted, when it was disclosed that Chami had a gaping incised wound, about 6" in length 2" in width and 4" in depth on the left side of the neck, which cut through the left jugular vein and the carotid artery. THE incised wound on the left upper arm was 5" x 3"x 1/2" and that on the dorsum of the hand was a minor one. After investigation was completed, a charge against the accused was laid by the Police in the court of the Sub-Magistrate at Palghat, on the first April 1958.

(3.) AS noted, the appellant presented-himself at the Police Station, immediately after the case was registered. His learned counsel argued that he may have gone there to give information about his brother's death. This cannot be too readily accepted. It was pw. 1 who was the first to give information on the morning. When questioned under S.342; Crl. P. C., the appellant's explanation for this conduct was that it was a case where he was actually seized by the Police, and not, as may be inferred, that he voluntarily appeared to lodge information. When questioned again on some aspects of the evidence against the appellant, his case was, that on hearing the cry, he also came to the scene of occurrence, a version which is palpably false and impossible to accept. Pws. 1 to 3 saw the appellant escaping from the scene. Pws. 5 and 6 saw someone going away. Pw. 1 declared the identity of the assailant to Pws. 5 and 6, if not to Pw. 4 also. There was no suggestion in the cross examination of these witnesses that the appellant was one of those who came there, or that he was present. It is seen from the judgment of the learned Judge, Para.5, that a senior Advocate had been appointed to defend the appellant at the trial under the Kerala Legal Aid to the Poor R.1957. Far from having been present at the scene, the appellant was conspicuous by his absence there. This, as well as his voluntary appearance before the Police Station on the next day, probably overtaken by remorse, constitute a circumstance against the appellant.