In Re: T. Palaniswami Goundan and Others

Lakshmana Rao, J.—There was a disturbance near the houses of P.Ws. 5 to 15 at Vengipalayam about 8 P.M. on 29th January 1939 and one Swami Goundan who intervened was fatally wounded. Grievous hurt was caused to P.Ws. 6 and 7 and simple hurt was caused to P.Ws. 5 and 8 to 15. The occurrence was reported to P.W. 18, the Village Munsif, without delay, and Swami Goundan died next morning of coma due to a depressed fracture of the frontal bone caused by a stone. He had also another injury on the head due to beating with a stick and P.W. 6 had two injuries on the head due to beating with sticks. The frontal bone at the base of one of these injuries was fractured and P.W. 7 had a contusion covering the outer side of the lower third of the left arm and elbow, with simple fracture of the left humerus.

The appellants are stated to have gone in a body and created the disturbance and all of them have been convicted u/s 147, I.P.C. Appellant 5 is alleged to have caused the fatal injury of the deceased by striking with a stone picked up from the scene of crime, and he has been sentenced to transportation for life u/s 302, I.P.C. for the murder of Swami Goundan. Appellant 1 is stated to have beaten him on the head with a stick and he has been sentenced to rigorous imprisonment for six months u/s 323, I.P.C. Appellants 2 and 3 are alleged to have beaten P.W. 6 on the head with sticks and they have been sentenced to rigorous imprisonment for two years u/s 325, I.P.C., for voluntarily causing grievous hurt to him. Appellant 1 is also alleged to have beaten P.W. 6 on the body with a stick and he has been sentenced to rigorous imprisonment for six months u/s 323, I.P.C., for causing hurt. Appellant 3 is also stated to have caused the fracture of the left humerus of P.W. 7 by beating with a stick and he has been sentenced to rigorous imprisonment for two years u/s 325, I.P.C., for voluntarily causing grievous hurt to P.W. 7. The other appellants have been sentenced to rigorous imprisonment for 18 months under Sections 149 and 325, I.P.C., for the grievous hurt caused to P.W. 7 and appellant 4 has been sentenced to rigorous imprisonment for six months u/s 323, I.P.C., for causing hurt to P.W. 9. Appellant 8 has been sentenced to rigorous imprisonment for six months u/s 323, I.P.C., for causing hurt to P.W. 12 and the sentences have been directed to run concurrently.

That the appellants created the disturbance and are guilty of rioting u/s 147, I.P.C., was not disputed in this Court, nor were the findings of the Additional Sessions Judge regarding the beating of P.W. 6 on the head by appellants 2 and 3 and on the body by appellant 1, the assault of P.W. 7 on the left arm with a stick by appellant 3 and the beating of P.Ws. 9 and 12 by appellants 4 and 8 seriously questioned. There is also no reason to doubt the beating of the deceased on the head with a stick by appellant 1 but the story of P.Ws. 5, 6, 9 and 10 that the fatal injury on the deceased was caused by appellant 5 by beating with a stone in his hand is belated and considering that appellant 5 had given evidence against these witnesses previously it would be unsafe {to accept their statement. He must have thrown a stone at Swami Goundan and as rightly conceded he would at best be guilty of voluntarily causing grievous hurt u/s 325, I.P.C. Appellant 1 would unquestionably be guilty u/s 323, I.P.C. for causing hurt to the deceased and P.W. 6, and appellants 4 and 8 would be guilty u/s 323, I.P.C. for causing hurt to P.W. 7 as he must have known that beating with a stick on the left forearm is likely to fracture the humerus and the rest would be guilty of that offence u/s 149, I.P.C. But of the two injuries on the head of P.W. 6 only one was grievous and it is not possible to say whether appellant 2 or 3 caused that injury. Neither of them can therefore be convicted u/s 325, I.P.C. and the conviction of both can only be u/s 323, I.P.C.

The conviction of appellant 5 u/s 302, I.P.C. is therefore set aside and he is convicted u/s 325, I.P.C. for the assault of the deceased. The conviction of appellants 2 and 3 u/s 325, I.P.C., for the assault of P.W. 6 is set aside and they are convicted u/s 323, I.P.C. The other convictions of all the appellants are confirmed and considering that he was not even armed appellant 5 is sentenced to rigorous imprisonment for 18 months u/s 325, I.P.C., for the assault of the deceased. Appellants 2 and 3 are sentenced to rigorous imprisonment for six months u/s 323, I.P.C., for the assault of P.W. 6 and the sentence of appellant 3 u/s 325, I.P.C., for the assault of P.W. 7 is reduced to rigorous imprisonment for 18 months. The other sentences are confirmed and all the sentences will run concurrently.