In Re: Kuttappan alias Sugathan and Sudakar alias Sudakaran

Janarthanam, J.—Accused 1 and 2, aggrieved by their conviction and sentence, have come forward with this appeal.

The brief facts are:

X X X

[The discussion relating to the facts is omitted-Ed.]

The question that crops up for consideration is as to what is the offence that has been committed by accused 1 and 2. There is no manner of doubt

whatever that the house property of the deceased and the property belonging to the accused is separated by a boundary wall running from east

west situate on the northern side of the house of the deceased. It is also not in dispute that the boundary wall having fallen due to rain was replaced

to certain extent by a masonry construction by the deceased, by commencing the work of construction some 15 days prior to the occurrence.

Even at the initial stage of construction of the wall, accused 1 and 2 objected to the construction being carried on without actually measuring the

same with the aid of a surveyor. The deceased did not heed at all to the objection raised by the accused. He proceeded with the construction and

actually put up the compound wall to a height of two feet for a length of 20 ft. The accused in order to prevent further construction approached the

civil court and obtained an order of injunction preventing the deceased from further proceeding with the work of construction. Ten days after the

commencement of the work, the order of injunction was actually intimated to the deceased. Though the construction thereafter initially stopped for

sometime, the deceased further proceeded with the work completion of the construction of the boundary wall by engaging workers on the morning

of the day of occurrence, when the workers were making preparations for commencing the work of construction, accused 1 and 2 emerged there

and entreated the deceased not to further proceed with the work of construction as the civil court had already issued an order of injunction. On

hearing the objection raised by the accused, the workers, namely P.W.3 and others went away from there abandoning the work. But the deceased

would not allow them to cease the work of construction. He mandated them to further proceed with the work of construction to which course the

workers were not amenable. It is only at this stage, obviously feeling irritated by the conduct of the deceased to somehow or other complete the

construction of the boundary wall, they questioned his propriety in further proceeding with the work of construction. A wordy altercation arose

between the accused on the one hand and the deceased on the other. In that process, accused 1 and 2 inflicted certain injuries on the person of the

deceased.

Accused 1 seized a spade lying in the workspot. He did not immediately attack the deceased with the spade. What he would do was that he got

the spade dashed against the wall so as to remove the blade portion from the handle and after the severance of the blade portion from the handle,

he inflicted two hits on the head of the deceased with the handle of the spade. Immediately after the receipt of the two hits, the deceased fell on the

ground. It is only thereafter, accused 2 inflicted a cut on his left knee portion and inflicted only once a cut on the left knee portion. Thereafter, both

the accused ran away from the scene. The act of the accused 1 in removing the blade portion from handle before ever he did inflict hits on the head

of the deceased is proof positive of the fact that he did not intend to cause the death of the deceased and if at all what would have been uppermost

in his mind then was to cause some harm to the deceased and this harm so caused by the infliction of hits with the blade handle has unfortunately

led to his death subsequently. The act of accused 1 in such circumstances could not be stated to be one done with the intention of causing the

death of the deceased and if at all he could have had the knowledge that his act was likely to cause the death of the deceased. As such, the act of

accused 1 in such circumstances would squarely fall u/s 304, Part II, I.P.C.

Accused 2 had after all, inflicted a single cut on the left knee of the deceased, not a vulnerable portion of human anatomy. It is clearly indicative

of his mind that he intended to inflict some harm to the deceased. The medical opinion available on record reflects that the injury on the left leg of

the deceased inflicted by accused 2 is grievous in nature. He is therefore liable, for voluntarily causing grievous hurt by a dangerous weapon M.0.2

to the deceased, punishable u/s 326, I.P.C. It is brought to our notice that he has been in prison for a period of not less than 26 days, which

besides imposing a fine of Rs. 2,000 could, in our view, be sufficient sentence.

In the result, the conviction of accused 1 and 2 under S. 302 read with Section 34, I.P.C., and sentence of life imprisonment imposed by the

court below are set aside and instead accused 1 is found guilty u/s 304 , part II, I.P.C., convicted thereunder and sentenced to rigorous

imprisonment for five years. Accused 2 is found guilty u/s 326, I.P.C., convicted thereunder and sentenced to imprisonment to the period already

undergone, in addition to a fine of Rs. 2,000 (Rupees Two thousands only) in default rigorous imprisonment for six months. Time for payment of

fine, one month from the date of receipt of the records by the Court below from this Court.

Subject to the above modification, this appeal shall stand dismissed.