KUNJARU Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is directed against the conviction of the appellant by the Sessions Judge at Palghat, under Section 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 P. W. 1, his mother P. W. 4 and his brothers Chami and P. W. 3 and Chami's wife P. W. 2, in their house till about a week before the occurrence, when he and P. W. 4 removed themselves to the house of a neighbour P. W. 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 P. W. 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. P. W. 1 was sleeping on the front veranda of the house not far away from where Chami lay. P. W. 2, the widow of Chami, was sleeping in the inner veranda. Both P. Ws. 1 and 2 were roused by Chami's cries, and they witnessed the appellant inflicting the cuts on him, and escaping from the scene. P. W. 3 also was roused from sleep and witnessed the act. The alarm raised by P. Ws. 1, 2 and 3 brought P. W. 5, followed by P. W. 4, to the scene. Chami, who was struggling, had been laid on the ground, and P. W. 5 gave him some water to drink. Chami expired shortly after. On the next morning, P. W. 1 gave information about the occurrence to P. W. 13, the amsom Adhikari, implicating the appellant for the murder. The statement which was recorded by P. W. 13 and which has been proved to be Ext. P. 1, was forwarded by P. W. 13 to the Palghat Cusba Police Station, where P. W. 17, the Sub -Inspector of Police, received it at 11 A.M., and registered a case under Section 302, I. P. C. At about 11 -15 A.M., the appellant presented himself at the Police Station, and was taken into custody. P. W. 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.

(2.) THERE is no doubt that Chami died, and that the injury on the neck, which cut through the vital arteries, was necessarily fatal. This accounted for his death. There is abundant evidence in the case to establish, that the appellant had been inimical towards Chami. It would appear that about three weeks before the occurrence, the appellant made an attempt to remove cattle, which belonged to his father P. W. 1, to the market, to be disposed of there, and that he was foiled in the attempt by P. W. 1 and Chami. Later, that is about two weeks before Chami's death, the appellant entered into an agreement with P. W. 12, for the sale of a she -buffalo which belonged to P. W. 1, and received a sum of Rs. 50/ - from him. On account of the obstruction offered by P. W. 1 and Chami, the sale did not materialise and the appellant had to refund the money to P. W. 12. All this appears from the testimony of P. Ws. 1, 2 and 4. P. W. 12 has also deposed to the latter incident. It is seen further, that P. W. 4 the mother and the appellant, started cooking their food separately in their house, to which Chami took exception and this led to their separate living for a week. P. W. 5 has confirmed this, as well as the ill -feeling between the appellant and Chami. P. W. 4 has explained, that P. W. 1 had not given the promised Stridhanam to his daughter, which was not appreciated by the appellant and it is more than probable, that this was the reason for the appellant's trying to dispose of cattle which belonged to P. W. 1 to raise funds for payment towards the Stridhanam. In this, the mother P. W. 4, had made common cause with the appellant and this explains why she removed herself with the appellant to the neighbour's residence. There is no reason to discard the evidence adduced by the prosecution on this part of the case. The appellant himself, in his statement under Section 342, Crl. P. C, admitted substantially these incidents, though he seemed to suggest, that there was not so much of a quarrel or estrangements between them. The incidents disclosed above, must be found to be proved. If so, it must follow, that there was bitter ill -feeling between the appellant and Chami.

(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 P. W. 1 who was the first to give information on the morning. When questioned under Section 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. P. Ws. 1 to 3 saw the appellant escaping from the scene. P. Ws. 5 and 6 saw someone going away. P. W. 1 declared the identity of the assailant to P. Ws. 5 and 6, if not, to P. W. 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, paragraph 5, that a senior Advocate had been appointed to defend the appellant at the trial under the Kerala Legal Aid to the Poor Rules 1957. Far from having been present at the sense, 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.