Seemaichamy vs State by S.I. of Police Chatrakudi Police Station Crime No. 156 of 1971

K.N. Mudaliyar, J.—This is an application directed by Seemaichamy against the order of the Judicial Sub Magistrate of Paramakudi

rejecting his application with a prayer for splitting up the case against him for an offence u/s 324 I. P. C. and to quash the proceedings against him

u/s 302 read with S. 34 I. P. C.

Briefly the facts, according to the prosecution, are: Seemaichami and Chinnaswamy are brothers. They are the accused in P. R. C. No. 2 of

1972. P.W. 1 and his son (deceased) bore enmity towards the family of the first accused.

Even according to the averments in the charge-sheet, on 12th December, 1971 at about 3 p.m. Ponnuswamy Thevar, the father of deceased,

went to his chilli garden. The first accused was draining the excess water from his field into the chilli garden of Ponnuswamy Thevar. Ponnuswamy

Thevar put a bund to prevent the water from flowing into his chilli garden. Seemaichami cut Pounuswami Thevar with a spade on his head and

caused simple injuries to him. This occurrence was undoubtedly a 3 p.m.

Chinnaswamy was in the village in the house of his father Ponnuswami Thevar. It emerges from the statement of P. W. 1 recorded by the police

that Ponnuswamy Thevar and his elder son proceeded towards the chilli garden of Ponnuswamy Thevar for taking retaliatory action. But they were

prevented by some of the villagers and were brought back to the village. As they were returning to the village, Naganathadhurai was proceeding

towards the chilli garden of Ponnuswamy Thevar. As he was passing before the house of Thalaiyari, be was stabbed by Chinnaswamy on his

abdomen. This occurrence was about 5 p.m. Later the son of Ponnuswamy died on 14th January, 1972.

Even according to the prosecution it is apparent that the second accused was not present during the occurrence at 3 p.m. nor the first accused

was present during the occurrence at 5 p.m. Even the learned trial Magistrate stated that the distance between the place of first occurrence and the

place of second occurrence is about four furlongs. He finds that the first occurrence took place at 3 p.m. while the second occurrence took place

at 5 p.m. The learned trial Magistrate went to the extent of expressing the view that though the two occurrences took place at different times and at

different places, the offence u/s 324 I. P. C. was the cause for the offence u/s 302 I. P. C. Undoubtedly, it was the cause for the later occurrence

at 5 p.m. But that would not satisfy the ingredients of the phrase ""the same transaction "" found in S. 239(d) Crl. P. C. I do not find that the facts

narrated by the prosecution constitute ""the same transaction"" within the meaning of S. 239(d) Crl. P. C. Therefore, the two accused cannot be

tried jointly. The offences committed by accused 1 and 2 are separate and distinct offences. Therefore, the proceedings against the first accused

Semaichami relating to the alleged offence under S; 302 I. P. C. read with S. 34 I. P. C. are quashed. Further proceedings against accused 2

relating to the offence u/s 324, read with S. 34 I. P. C. are also quashed. The trial Magistrate is directed to split up the case and proceed with the

enquiry or trial of accused 1 Seemaichami for the offence u/s 324 I.P.C. He is also directed to hold the preliminary enquiry against accused 2 for

the offence u/s 302 I. P. C. in separate proceedings, enquiry or trial against each of these accused is directed to be completed expeditiously. The

petition is allowed.