Govindarasu and Another

K.N. Mudaliyar, J.—Accused 1 and accused 2 are the Appellants. They appeal against their convictions for offences u/s 304 (first part)

I.P.C. (accused 1) and 323 I.P.C. (two counts against accused 2).

Briefly the prosecution case is that on 10th September, 1967 one Rathina Kandiar, pangali of accused 1 and 2 died. In the morning, accused 1

and 2 went to the house of Rathina Kandiar for condolence. Rathina Kandiar''s relations, viz., deceased Krishnaswami Kardiar, his son

Meikappan (P.W. 1), Thirun-dayyan (P.W. 3), Ramaswami (P.W. 6), Appadurai (P.W. 7) and Rangaswami P.W. 8) and others bad also gone

for the condolence. At about 12 noon a scuffle ensued between the accused on the one side and P.W. 3 on the other as a result of accused 1 and

accused 2 beating P.W. 2 for not placing his steps to the tune of the drams. Ultimately P.W. 3 and the accused came to blows. Krishnaswami

Kandian (deceased), P.W. 1 and six others intervened and pacified and separated them. The accused who were annoyed left the place.

The burial of Rathina Kandiar took place by about 4 p.m. After that, deceased Krishnaswami, P.W. 1 and P.W. 7 went to their houses.P. Ws.

3, 6 and 8 took their bath in the village tank and were proceeding to the houses of P. Ws. 6 and 8 southwards along the panchayat road and by

the side of the tea stall of the first accused. P.W. 3 also accompanied P. Ws. 6 and 8 as he wated to take his food with them.

When P.Ws. 3, 6 aad 8 passed in front of the tea shop of the first accused, they saw accused 1 and 2 sitting in their stall. On seeing the said

witnesses, accused 1 stated ""Whet would they do if we beat them?"" So saying accused 1 and 2 went out Accused 1 was armed with the yoke (M.

Order 1) and accused 2 was armed with the casuarina stick (M.O. 2) and they chased P. Ws. 3, 6 and 8. P.Ws. 3, 6 and 8 ran a little south to a

place near the house of P. W. 7, Appadurai, where there were some firewood pieces stacked. One of them took a stick and faced the pursuers.

Accused 1 and 2 stood on the north and P.Ws. 3, 6 ana 8 stood on the south and there was mutual abusing. Hearing the noise, P.W. 7 whose

house is abutting the panchayat road, came out and pacified them. At the same time Krishnaswami (deceased) and his son (P.W. 1) and two

others who reside in the same locality to the east of the panchayat road also went and intervened and asked the two parties not to quarrel.

Seeing Krishnaswami (deceased) intervened, accused 1 got annoyed and said ""you came for panchayat there and you have come for panchayat

here also"" and beat the deceased on his head with the yoke (M.O. 1) causing an injury on his head. The deceased fell down speechless. When

P.W. 1 (Meikappan) went to hold his father, the second accused best P.W. 1 with the stick (M.O. 2) on his right index finger. The second

accused also heat P.W. 6 and with M.O. 2 on his right eBook and right little finger. In retaliation, P.W. 6 beat the first accused with a sick twice

and P.W. 3 beat the second accused with the stick 5 or 6 times causing simple injuries to them; Krishnaswami was unconscious and by the time he

was taken to the hospital, he was dead. These are the principal features of the prosecution case spoken to by P. Ws. 1, 2, 3, 6, 7 and 8.

The plea of the accused is substantially one of denial. In the course of the cross-examination of the eye witnesses, it was suggested that they

went armed to the tea stall, chased both the accused and pulled them out when they were hiding inside their houses and beat them with sticks and

that the deceased received the injuries by one of the witnesses himself and the case has been shaped against the accused. Accused 1 further says

that he and his brother went for condolence of Rathina Kandiar''s death, that they beat P.W. 3 on account of a quarrel at the house of the dead

man, and that P.W. 1, 2 and 6 and Krishnaswami Kandiar (deceased) pacified them and they left the place. The deceased than announced that the

accused''s family alone was opposed to them and would deal with them later, that when they were sitting in their tea shop at about 4.30 p.m. about

fifteen persons including the deceased and witnesses went there armed with sticks, that they went into their houses that deceased, and P.W. 1

dragged him (first accused) out from his house and the persons standing in front of his house beat him and caused bleeding injuries, that he fell

down unconscious, that the was dragged to the road and that he did not know what happened after that. Accused 2 also stated that he was inside

his house end was dragged and beaten by the Villagers, that he ran to the police station and reported that his brother and himself were beatan by

the villagers.

I have no hesitation in holding that accused I gave the fatal blow on the head of the deceased Krishnaswami Kandiar and that P. Ws. 1 and 6

wets beaten by accused 2. The medical evidence shows that the injury found on the deceased could have been caused by a yoke (M. O. l) and

was necessarily fatal. The injuries found on P. Ws. 1 and 6 could have been caused by a casuarina stick like M.O. 2. P.W. 1, the son of the

deceased, P. Ws. 3, 6, 7 and 8 were undoubtely present at the place of occurrence. These witnesses swore and affirmed that when the deceased

intervened, I got annoyed and gave a blow on his head with M.O. 1 and that accused 2 beat P. Ws. 1 and with the stick. There cannot be any

mistaken identity about the assailants of the deceased and P. Ws. 1 and 6. The injured P. Ws. 1 and 6 say that it was accused 2 who beat them,

within a few hours of the occurrence. P.W. 1 has given the report Ex. P.1 in which the entire prosecution version has been cogently given. There

was really no delay which could be said to have been exploited for the purpose of shaping and frosting the case on the accused.

The learned Counsel for the Appellants argued that by reason of the relationship that existed between deceased Krishnaswami Kandiar and P.

Ws. 3, 6, 7 and 8 it would tender the case of the accused probable in the sense that they all joined together to attack accused 1 and 2. This

argument is devoid of any substance. In Ex. 17 accused 2 avers that Krishnaswami Kandiar (deceased) came and modiated and asked P. Ws. 6

and 8 not to beat him (accused 2).

But accused 2 does not even implicate P.W. 3 and does not attribute any overt act against P.W. 2. He mentions about one Ayyavco beating

him with sticke. Accused 2 says that he did not see who beat Krishnaswami Kandiar (deceased) but he admits that the occurrence took place on

10th September 1967 evening at about 4 o''clock. It may be remembered that accused 1 and 2 are also related to P.W. 1 and Krishnaswami

Kandiar (deceased). The only allegation made in Ex. P. 17 is that Krishnaswami Kandir (deceased) came and mediated and even went to the

extent of asking the assailants not to beat him. P.W. 1 says that he and his father (Krishna swami Kandiar, deceased, went and intervened to stop

the quarrel.

Thereupon accused 1 got annoyed and beat him with the yoke saying ""You came for Panchayat there. You are coming for Panchayat here

also."" M.O. 1 is the yoke with which accused 1 beat the father of P.W. 1. This material part of P.W. 1''s evidence is in consonance with the earlier

case of accused 2 stated in Ex. P. 17. Therefore, in nay view the theory suggested on behalf of accused 1 and 2 that the deceased was beaten on

his head by his own patty people when the accused were being dragged out from their houses is utterly untenable and baseless.

Another argument has been advanced on behalf of the Appellants that there is some doubt about the time when Ex. P.1. has been brought into

existence. His argument is that Ex. P. 1 was received by the Sub-Inspector at 8.45 p.m. on 10th September 1967 and therefore there is

considerable delay. The learned Counsel relies on the evidence of P.W. 7 when he says that they informed the policemen who was standing near

the police station and he directed them to take the injured to the hospital. They did not step the cart and inform the policeman. P.W. 7 says that

they informed him while the cart was proceeding. He also says that they told the policeman that the injured received the injuries in an assault. Some

comment has been made on Ex. D 5 when P.W. 7 says in the court of the committing Magistrate that they informed the police on the way after

stationing the cart. In the Court of Session, P.W. 7 says that the cart was stopped on the way near the police station and this was not mentioned in

the Committal Court. On this basis, it is argued, that Ex. P. 1 was not recorded on 10th September 1967 at about 8-45 p.m. This argument is

urged on the ground of evidence of P.W. 12 who says that he has no information from any of his constables that any of them heard about the

occurrence from P.Ws. 1 and 7 before P.W. 12 recorded Ex. P.1. This argument really amounts to airy nothing when one Judge the probative

value of the evidence of P.W. 1 and P.W. 12.

It has been argued again that the accused were bleeding and therefore the place ''A'' in Ex. P. 19 was the place where the bloodstained earth

was recovered by the Investigating Officer. The argument further runs because accused 1 has the bleeding injury the blood-stained earth might

have been scraped as a result of the blood from accused 1 - staining the earth there. This argument is wholly unmeritorious and it is not the case of

either accused 1 or accused 2 that they went to the place marked ""A"" in Ex. P. 19. This argument does not contain even a shadow or semblance

of merit. This argument is rejected.

The learned Sessions Judge in paragraph-73 of the judgment while considering the nature of the offence proved against accused 1 observed as

follows:

It is seen that there was no premeditation to cause the death of the deceased who suddenly came and intervened in the quarrel between the

accused and P. Ws. 3. 6 and 8. First accused must have acted in the course of a sudden fight which ensued between him and P. Ws. 3, 6 end 8

and In the heat of passion upon a sudden quarrel. First accused has also given one blow on the head of the deceased and bad not acted in a cruel

or unusual manner. Having regard to the above features, I think the offence made out against the first accused amounts to culpable homicide not

amounting to murder coming under Exception (4) to Section 300 I.P.C. I therefore find the accused ''guilty'' u/s 304 (first part) I.P.C. and convict

him accordingly, under the first charge.

The learned Judge may be right in finding ""a sudden fight which ensured between him (accused 1) and P. Ws. 3, 6 and 8 and in the heat of

passion upon a sudden quarrel"" The learned Judge ought to have carefully weighed the evidence of P.W. 1 land found accused 1 and 2 were the

aggressors who were chasing P. Ws. 3, 6 and 8. Even, according to Ex. P.17, Krishnaswami Kandiar (deceased) intervened only as a mediator to

pacify the parties. He never alleged himself with P.W. 3, 6 and 8. The learned Judge clearly erred in imagining that accused 1 had not acted in a

cruel or unusual manner. It must be borne in mind that Krishnaswami Kandiar (deceased) was completely unermed. He was playing the role of a

messenger of peace. Against the learned Judge has erred in imagining that one blow on the head of the deceased might not bring the offence u/s

302 I.P.C. The learned Judge has not displayed a proper undertaking and comprehension of Exception 4 to Section 304 I.P.C. in the light of the

evidence of P. Ws. 1, 3, 6, 7 and 8 end Ex. P. 1 and P. 17 in the case. In my view, the offence proved against accused-1 is clearly one of murder.

This is yet another case where there has been a miscarriage of justice by reason of the failure on the part of the Stale to take immediate steps in

preferring an appeal against the acquittal of accused-1 u/s 302 I.P.C.

I am constrained to observe that in recent times there is an increasing tendency on the part of some Sessions Judges to avoid convicting the

accused in some cases for offences u/s 202 I.P.C. and bring the offence u/s 304 I.P.C. somehow, although the prosecution has succeeded in

proving the offence to be one of murder u/s 302 I.P.C. This tendency on the part of some Sessions Judges ought not to be countenanced by the

State by not pursuing diligently the appeals against such acquittals.

This is an appeal devoid of any merits. The conviction and sentence passed against accused 1 and 2 are confirmed. The criminal appeal is

dismissed.