(1.) THE appellant has been convicted and sentenced to imprisonment for life for causing the death of Gouri Amma,the wife of P.W.1,and has also been convicted and sentenced to rigorous imprisonment for 5 years for attempting to cause the death of P.W.1 by the Sessions Judge of,Tellicherry.
(2.) THE appellant is a discharged soldier.He was residing on the eastern side of the house of P.W.1,a small stream separating the two plots.Five or six days prior to the date of occurrence,31st March 1966,P.W.1 set fire to the wild growth in his compound;and the fire accidentally spread to the compound of the appellant and damaged some of the trees there.A mediation took place and the mediators said that P.W.1 should pay Rs.100 to the appellant as compensation.But P.W.1 agreed to pay only Rs.75.On the date of occurrence the appellant filed a suit against P.W.1 and others claiming Rs.550 as damages.The same day at about 9 p.m.after P.W.1,his wife and children retired to bed,the appellant standing in his compound,started abusing P.W.1.This went on for some time;but P.W.1 and his wife did not retort.Some time later,at about 11 p.m .,the appellant came to the house of P.W.1 and asked whether P.W.1 was asleep.P.W.1,who was still awake,answered in the negative:and the appellant entered the verandah and stabbed P.W.1 on the abdomen.Gouri Amm cried,"don 't do it "; but the appellant inflicted a stab on her abdomen also saying "this be for you " ;.P.W.2 and 12,two children of P.W.1 and Gouri Amma(aged 17 and 13 respectively ),were also on the verandah;and they informed P.W.13.the son -in -law of P.W.1,living about a furlong away.He came to the scene within a few minutes and the appellant was even then on the court -yard.P.Ws.6 and 14 also joined P.W.13.By that time the brother and the brother -in -law of the appellant came and took him away.A little later P.Ws.6 and 14 saw the appellant in front of the tea -shop of P.W.15 with a gun in hand.The appellant is then said to have told them that he stabbed P.W.1 and Gouri Amma and that he was going to commit suicide.P.Ws.6 and 14 caught hold of him and entrusted him and the gun to P.W.15.P.Ws.3 and 5 were informed about the occurrence;and they came to the scene in the early hours of the morning.P.W.3 is a school master and P.W.5 a panchayat member.They took a statement(Ext.P1)from P.W.1 and Gouri Amma,since they felt that the condition of the injured persons was bad.This also was handed over to P.W.15.Later P.W.11,the brother of P.W.1,went to the police station with a letter from P.W.10,another panchayat member,to the Sub Inspector of Police.By about 7 a.m.Gouri Amma died;and by about 8 a.m.P.W.1 was removed to the hospital at Taliparamba,from where he was removed to the District Hospital at Cannanore.The appellant was arrested at about 11.30 a.m .,when the gun and Ext.P1 were also taken into custody.The inquest,investigation,etc.followed.
(3.) THE appellant has denied the offence;but has however suggested in the cross -examination of the prosecution witnesses that P.W.1 had illicit connection with a Janaki which Gouri Amma did not like and on which score she and P.W - 1 used to quarrel.The further suggestion has been that P.W.1 might have stabbed Gouri Amma and might have also tried to commit suicide by stabbing himself.The appellant has also stated that he was arrested by the police,when he went to the shop of P.W.15 to take tea. The evidence of the eye -witnesses,P.Ws.1,2 and 12,has been read out to us.Even if the evidence of P.W.1 is left out of consideration since he may be said to be interested,still the evidence of the other two(two boys)is quite consistent and convincing.Besides that,there is Ext.P1,which contains Gouri Amma's dying declaration and a statement of P.W.1.The former is substantive evidence;and the latter corroborates the present version of P.W.1.Again P.W.13 speaks 1 of the presence of the appellant on the court -yard when the witness came there within a few minutes of the occurrence.This is also corroborated by the evidence of P.Ws.6 and 14,who accompained P.W.13 and later on caught hold of the appellant in front of the shop of P.W.15,gun in hand.Nothing worthy of serious consideration has been brought out to discredit the testimony of these witnesses.Every person connected with the incident has been examinee:and we are not able to find any lacuna in the evidence.The suggestion of the appellant regarding the intimacy of P.W.1 with Janaki has no basis whatsoever.We are therefore satisfied that the prosecution has proved the case to the hilt.
The Sessions Judge has awarded only life imprisonment:and the reason given by him is that the appellant was "in a state of frustration resulting from the loss caused to him by P.W.1 '' ;.We are unable to see any substance in this reasoning,because the mediators fixed the compensation only at Rs.100,of which P.W.1 agreed to pay Rs.75,the difference being only Rs.25.We fail to see how this small difference of Rs.25 could have caused a state of frustration sufficient to stab P.W.1 and his wife.In our opinion,this is a case in which the Sessions Judge should have awarded the maximum penalty of law,because,in spite of the abusive language used by the appellant for a fairly long time,neither P.W.1 nor Gouri Amma retorted.Having failed in provoking them,the appellant walked into their house at a very late hour in the night and inflicted stabs on vital parts of their bodies,which caused their smaller intestines protrude through the wounds.This was obviously deliberate and without the slightest provocation.Capital punishment has to be awarded in such cases:and there is no meaning,in giving the lesser punishment on such flimsy grounds,as long as capital punishment remains in the statute book.We are aware that the discretion to choose the sentence is with the trial court and not with the appellate court.At the same time,if the discretion is not judicially exercised,the appellate court has perforce to step in.As already indicated,no normal judicial mind would have awarded the lesser penalty in the circumstances of this case.However,since the State has not filed any application for enhancement of the sentence,we do not think it necessary to issue notice for enhancement at this late stage. We just confirm tile convictions and sentences of the Sessions Judge and dismiss the appeal.;