Palani Gounder vs State by Inspector of Police, Avalurpettai Police Station

M. Karpagavinayagam, J.—The appeal filed by Accused No. 2 Palani Grounder is directed against the judgment, in S.C. No. 71 of 1988

on the file of the Sessions Judge, South Arcot District, Cuddalore convicting the Appellant for an office u/s 304 part II of the Indian Penal Code

and sentencing, him to undergo R.I. for five years. Accused No. 1 has been acquitted, by the trial Court. Accused. No. 3 has been discharged

even before the framing of the charge. Accused No. 2 alone is the Appellant before this Court.

The case of the prosecution is as follows:

P.W. 1 Periyasamy and P.W. 2 Mani are the sons of the deceased Kasi Gounder. P.W. 3 Murugesan is the son-in-law of the deceased Kasi

Gounder. Accused. No. 1 is the paternal uncle of Accused No. 2. The occurrence took place on 17-1-1988 at 5-15 P.M. P.W. 1 Periyasamy

has got another brother by name Arumugam. There was rumor spread over in the village that there was illicit intimacy between A. 1''s daughter

Usharani and the said Arumugam. On that date of the occurrence at about 5-15 P.M. A.1 and A.2 along with one Elumalai went together in

search of Arumugham. That was informed to P.W. 1. So, P.W. 1 thinking that they may cause danger to the life of Arumugham went behind the

said accused. The deceased Kasi Gounder along with P.W. 2 were in their land. At that time, Elumalai went there and asked Kasi Gounder

An abrasion on the left knee 3 cm. x 2 cm

A contusion on the left eye-brow 2cm x 1cm Internal examination:

On internal examination he found the following:. Brain: Weight 1300 gms.

a. A haemorrhage present on the right parietal region 6 cm x 4.5 cm.

b. A hemorrhage present on the left frontal area 4 cm x 2.2 cm

Blood collections present at the base of skull 120 ml. of unclothed blood present at the base of skull. No basal fracture, spinal chord normal. Oral

cavity, normal. Nostrills. no injury. No ulcer. Not congested.

In the opinion of the doctor, the death was due to shock and hemorrhage of bleeding due to the injuries sustained. After the postmortem M.O. l.

Banian, M.O.2. dhoti. M.O.3. towel were recovered from the body by P.W. 12 and same were produced before the Inspector. On 21-1-1988

near Arani Road, A. 1 was arrested at 4 p.m. Then at 5 pm P.W. 13 Inspector of police arrested A2 and Elumalai. All the M. Os. 1 to 3 were

sent to court for sending them for analysis under Ex. P.2 requisition. The Magistrate sent those M. Os. for analysis through his letter Ex P.3. The

chemical report is Ex. P.4. The Serologist Report is Ex. P.5. Then P.W. 13 after completing the investigation filed charge sheet on 25-2-1988

against A1 to A3. As stated earlier, since there was no material available against A3, A3 was discharged and charges have'' been framed against

Al for an offence u/s 302 read with Section 34 I.P.C and against A.2 (Appellant) u/s 302 I.P.C simplicity.

When the accused were questioned u/s 313, Code of Criminal Procedure with regard to the circumstances brought on record, they denied their

complicity. After elaborate trial, the lower Court, after consideration of the evidence of the witnesses P.Ws. 1 to 13 and Exs. P. 1. to P. 11 and

the documents relating to the M.0.1 to MO 5, had come to conclusion that the prosecution has proved that the Appellant alone has caused the

death of the deceased by fisting with hand as a result of which the deceased died. However the trial Court has come to the conclusion that the

offence may not come u/s 302, I.P.C. since knowledge alone can be attributed to cause injury as is likely to cause death and as such, he is liable to

be punished for the offence u/s 304 Part-II I.P.C.

Mr. K.V. Sridharan, learned Counsel for the Appellant took me through the entire evidence on record and contended that P.W. 1 could not

have been a true witness because there is vital contradiction in the F.I.R. and his evidence before Court. He also submitted that the evidence

adduced by the other witnesses cannot be accepted because they are all interested witnesses and close relations of the deceased. When I was not

inclined to accept his submission, ultimately the counsel for the Appellant confined himself to the question of sentence.

Mr. R. Ragupathy, learned Additional Public Prosecutor fairly submitted that he has no objection for reduction of sentence. I feel that the

sentence of five years is too harsh in the light of the peculiar facts and circumstances of the case. Here is a case where the Appellant during the

course of quarrel, merely fisted with the hand on the place near the left eye-brow of the deceased and it was out of sudden quarrel and he would

not have expected that this fisting would lead to the death of the victim. It is also submitted that the age of Appellant was 53 years at the time of the

incident and that he has got family and children and he is the only bread winner of die family and his present age is about 62 years. So, the ends of

justice will be met by reducing the sentence to a period of 2-1/2 years.

I accordingly modify the sentence of five years into 2-1/2 years for the reasons mentioned above. At his stage. Mr. K.V. Sridharan, learned

council for the Appellant brought to my I notice that he is entitled for remission under five 1 G. Os. as detailed below.

G.O. Ms. No. 180 dated 28-1-1989

G.O. Ms. No. 781 dated 11-4-1990

G.O. Ms. No. 279 dated 23-2-1992

G.O. Ms. No. 296 dated 20-2-1993

G.O. Ms. No. 205 dated 23-2-1994

When Mr. Ragupathy learned, Additional Public Prosecutor was asked about the contention of the learned Counsel for the Appellant, he did

not dispute this position. He also admits that'' the Appellant is entitled for remission of for 2-1/2 years sentence under 5 G. Os. So, the Appellant

need not surrender before the prison authorities as 2-1/2 years sentence which has been given, has been covered by the five G.O.s referred to

above.

With this modification, the appeal is dismissed.