Balakrishnan vs State

David Annoussamy, J.—This is a revision petition by the accused person against conviction and sentence. Upon the final report filed by the

Investigation Officer, the Second Additional Assistant Sessions Judge of Vellore, on committal of the case from the Judicial Second Class

Magistrate-I, Vellore framed the following charges:-

That you on 30.10.1981, at about 12.5 hours (night) at Thiruvalam main Road, at Katpadi, caused hurt to one Perumal, P.C. 2314/N.A. by

stabbing over his chest and left hand with such intention and under such circumstances that if by that act you had caused the death of the said

perumal, you would have been guilty of murder and thereby committed an offence punishable under S. 307, I.P.C. and within my cognisance.

That you, at the same time, and place and in the course of the same transaction voluntarily caused hurt to the said Perumal, P.C. 2314/NA by

stabbing him over his chest and left hand, who is a public servant in the discharge of his duty as such Public Servant and thereby committed an

offence punishable under S. 332, I.P.C. and with my cognisance.

The prosecution examined 11 witnesses, including P.W.1 the injured witness and P.W. 2 another constable who accompanied P.W.1, marked 13

exhibits including the wound certificate and produced 8 material objects including the weapon used, viz., pen knife and the blood-stained clothes.

The accused on his side examined one witness in support of the plea of alibi. The trial Court upon perusing the evidence produced by both sides

and hearing their arguments, convicted the accused under both the charges and sentenced him to undergo 4 years rigorous imprisonment and to

pay a fine of Rs. 100 for the offence under S. 307, I.P.C and six months of rigorous imprisonment for the offence under S. 332, I.P.C. both the

sentences have been ordered to run concurrently. On appeal, the Sessions Court of North Arcot at Vellore by judgment, dated 5.7.1983

confirmed the convictions and reduced the sentence of imprisonment in respect of offence under S. 307, I.P.C, to two years, of rigorous

imprisonment. The revision is by the accused.

Learned Counsel for the revision petitioner would say that even admitting entirely all the facts as alleged by the prosecution, tie first offence

committed by the accused would not be one under S. 307, I.P.C, but only under S. 308, I.P.C. For an offence to come under S. 307, I.P.C, the

act should be done with such intention or knowledge and under such circumstances that if by that act the accused caused the death, he Would be

guilty of murder. As per S. 300, I.P.C, for an act to be murder it should come under any of the four clauses contained in the opening portion of the

section and should not come under any of the exceptions embodied in the same section. In this case, it is clear that the accused, as per the version

of the prosecution, inflicted a simple injury on the chest of Perumal P.W.1, with a pen knife upon being accosted by both the constables and being

questioned why and what he was doing there at that time. It is clear that no intention to cause death is made out and the incident happened in this

spur of the moment without any premeditation and that the accused did not use nor had any dangerous weapon in his hand.

Learned Public Prosecutor would fairly concede that the offence would come under S. 308, I.P.C.

As far as the second offence is concerned, learned Counsel for the revision petitioner would point out that an essential ingredient was missing.

There is no proof in the evidence on record that P. Ws.1 and 2 were discharging their duties as public servants when the occurrence happened.

This is in fact an essential ingredient under S. 332, I.P.C. As per the evidence of the prosecution there is nothing to show that, these two witnesses

were at the place of the occurrence in the discharge of their duties. It is pointed out apart from that they were wearing their uniforms. Normally,

when police officials are sent for any duty they will be given either a slip or entries will be made in the duty register in the relevant police station. No

evidence whatsoever of that kind was produced by the prosecution to show that P. Ws.1 and 2 were in the discharge of their duties at the time

and place of the occurrence. Therefore, this essential ingredient being missing, an offence under S. 332, I.P.C, was not made out.

As far as the sentence is concerned, it is represented by the learned Counsel for the revision petitioner that the revision petitioner has already

undergone 80 days of imprisonment that the occurrence took place in the year 1981 and that it was not just and proper to send him back to

prison. He would further add that the revision petitioner now admits the fact, report for the same and prays for the clemency of the Court.

In the result, both the convictions and sentence are set aside. The accused revision petitioner is found guilty of an offence under S. 308, I.P.C,

convicted there under and sentenced to imprisonment for the period already undergone and to pay a fine of Rs. 500 to be paid within two months

from the date of intimation of the order by the trial court failing with he shall undergo six months of simple imprisonment. The revision petition is

allowed to the extent indicated above.