BAIL SLIPRakkia Gounder, ( v. State by Inspector of Police,Uthukuli Police Station,Erode District

BAIL SLIPRakkia Gounder, (Accused No.1 in SC.No.141/2000 on the file ofthe Principal Sessions Court, Erode) was released on bail by theorder of this court dated 21.12.2000 and made in Crl.MP.No.8374/00 inCA.No.1052/2000.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05-01-2007CORAMTHE HONOURABLE MR.JUSTICE R.REGUPATHICrl. Appeal No.1052 of 2000Rakkia Gounder.. Appellant/Accused No.1VersusState by Inspector of Police,Uthukuli Police Station,Erode District... Respondent/Complainant For Appellant:Mr.N.ManokaranFor Respondent:Mr.N.KumananGovernment Advocate PRAYER: Appeal under section 374 (2) of Crl PC against the convictionimposed in judgment dated 07.11.2000 made in S.C.No.141 of 2000 onthe file of the Principal Sessions Court, Erode. J U D G M E N TThe appellant along with his wife A-2 was charged for an offencepunishable under Sections 302 and 302 r/w 109 IPC. On conclusion ofthe trial, the second accused was acquitted of the charge levelledagainst her. The appellant first accused alone was convicted for anoffence punishable under Section 304(II) IPC and sentenced to undergorigorous imprisonment for five years. Aggrieved against that thepresent appeal. 2. The case of the prosecution is that the deceased is thecoparcener of the appellant. The parents of the deceased were having1/6th share of the property. While grazing the cattle, there waswordy quarrel between the wife of the appellant and the deceased onprevious occasions and in pursuance of which, on 25.03.2000 at about https://hcservices.ecourts.gov.in/hcservices/

5.00 pm the appellant armed with a knife (soori kathi) alleged tohave stabbed the deceased on his chest, resulting in his death. 3. P.W.1 to P.W.3 were examined as eye witnesses in the case.P.W.1 is the daughter of the deceased. P.W.2, the child witness, isthe grand son of the deceased and P.W.3 is the servant of thedeceased. P.W.4 is the Village Administrative Officer (VAO), whospeaks about the arrest and recovery. P.W.5 is the photographer.P.W.6 is the postmortem Doctor who has conducted the postmortem onthe dead body of the deceased on 26.03.2000 at 11.15 a.m and foundthe following injuries:"External injuries:1) Stab wound 4 cm x 2 cm x 16 cm on the right side ofthe chest, 7 cm above and 2 cm medial to the right nipple.The wound goes downwards posteriorly and medially.2) Incised wound 1 ½ cm x ½ cm x 1 ½ cm on the rightlateral aspect of chest. 10 cms below and lateral to theright nipple."The Medical Officer is of the opinion that the deceased would appearto have died of shock and haemorrhage due to the injury to vitalorgans lungs and liver. Ex.P-7 is the postmortem certificate. It hasbeen further opined that all internal injuries would be the result ofthe injury No.1, which could be caused by a weapon like M.O.6. InjuryNo.2 is superficial in nature. Injury No.2 may be caused by a personslipping down on a sharp object on the ground. P.W.7 is the policeconstable who has delivered the FIR to the investigating officer.P.W.8 is the postmortem constable. P.W.9 is the police constableworking in the out post Government Hospital, Erode, who intimated thedeath of the deceased. The death intimation is Ex.P-11. P.W.10 is theMagistrate Court Clerk. P.W.11 is the Sub Inspector of Police whoreceived the complaint from P.W.1 on 25.03.2000 at about 8.00 p.m andregistered a case in Crime No.116 of 2000 under Section 302 r/w 34IPC. Ex.P-8 is the FIR. P.W.12 is the Inspector of Police who took upinvestigation. On receipt of Ex.P-8 on 25.03.2000 and on receipt ofthe death intimation from P.W.9, he visited the scene of occurrenceand in the presence of P.W.4, prepared the observation mahazar-Ex.P-2and rough sketch-Ex.P-18. Thereafter on 26.03.2000 between 6.30 p.mand 9.30 p.m examined P.W.1 to P.W.3 and conducted inquest over thedead body of the deceased. Ex.P-17 is the inquest report. The deadbody of the deceased was sent for postmortem through P.W.8 with therequisition Ex.P-6. M.Os.2 to 5 blood stained earth, sample earth andblood stained chappals, respectively have been recovered under Ex.P-3mahazar. He has arrested the accused and recorded his statement Ex.P-4 leading to recovery of M.O.6, blood stained knife, under a cover ofmahazar-Ex.P-5. P.W.12 after examining the other witnesses andobserving the formalities filed the final report for an offencepunishable under Section 302 r/w 34 IPC. https://hcservices.ecourts.gov.in/hcservices/

4. On conclusion of the trial, the accused was questioned underSection 313 Cr.P.C for which the appellant has admitted the wordyquarrel between him and the deceased. It has been stated that thedeceased attempted to beat him with the stick and to ward off suchattack, the appellant has used M.O.6 and as the deceased was movingit has reached the chest, resulting in the injury. 5. Learned trial Judge on a perusal of the ocular testimony ofthe evidence and exhibits marked and after hearing the counsel forthe prosecution and the defence, convicted the appellant asaforementioned.6. The learned trial Judge observed that the appellant hascaused a single injury on the chest after wordy altercation and insuch circumstances, an offence under Section 302 IPC is not made out.Further on the facts and circumstances, the trial Court convicted theappellant under Section 304 Part II IPC and sentenced him to undergoimprisonment for five years.7. Learned counsel appearing for the appellant submitted thatP.W.1 to P.W.3, the eye witnesses of the case are interestedwitnesses. P.W.1 is the daughter of the deceased. P.W.2 is the grandson and P.W.3 is the maid of the deceased. On the date of occurrence,the age of the accused was 65 and as on today, his age is 72. The sonof the appellant has deserted him and the appellant is living in thecustody of his daughter. The appellant is suffering from ailments dueto advancement of his age. Though his age has been recorded as 65during trial, it was about 72 even at the time of occurrence and ason today, he is about 80 years. The quarrel and the stabbing of thedeceased was accepted even during the course of trial, in hisstatement, by the appellant. The manner of attack only has beendisputed. The wordy quarrel on account of grazing of the cattle isnot in dispute. In such circumstances, sought for leniency, whileimposing the sentence. 8. Learned counsel for the appellant relied on the followingjudgments:Sunder Singh Vs. State of Rajasthan (AIR 1988 SC 2135)State of Punjab Vs. Mohinder Singh (1993 Crl.L.J3903 )Giani Ram Vs. State of Haryana and others (AIR 1995 SC2452)Budhan Singh and others Vs. State of Bihar (2006(4)SCC 740) https://hcservices.ecourts.gov.in/hcservices/

9. Learned counsel appearing for the appellant submits that theappellant has already undergone imprisonment of 55 days and in viewof the facts and circumstances of the case, the same may be treatedas sentence period already undergone. 10. The appellant is none other than the cousin of the deceased.Though they have quarrelled on account of grazing the cattle in theirfields, the occurrence took place in a spur of the moment. I do notfind any material to substantiate premeditation and intention tocommit the offence. All the eye witnesses have consistently statedthat there was wordy quarrel prior to the occurrence. The accused inhis 313 Cr.P.C statement fairly accepted such quarrel and pleaded theright of private defence. At any rate the second injury is asuperficial injury and the appellant has caused a single stab,resulting in the death of the deceased.11. The sentencing aspect of 304 Part II reads as follows:"that imprisonment for either description for a termwhich may extend to 10 years, or with fine or with both, ifthe act is done with the knowledge that it is likely tocause death. But without any intention to cause death or tocause such bodily injury as is likely to cause the death."12. In the instant case, the intention to cause the death cannotbe imputed to the appellant. However, it could be inferred that theappellant had knowledge that the injury on the vital part of the bodyof the deceased would cause death. In such circumstances, theappellant has been rightly convicted for an offence punishable underSecitn 304(2) IPC. 13. In the decisions relied on by the learned counsel for theappellant, as regards the sentencing policy, the Supreme Court as anexceptional case has reduced the sentence keeping in mind, theadvanced age of the accused therein. In the present case, theoccurrence itself had taken place during 2000 and the appellant hasalready undergone imprisonment for 55 days. No useful purpose may beserved by sending the appellant to jail, as he is aged and sick. Oninstructions, the learned counsel appearing for the appellant submitsthat the daughter of the appellant is willing to pay a compensationof Rs.20,000/- to P.W.1, the daughter of the deceased. https://hcservices.ecourts.gov.in/hcservices/

14. In such circumstances, as an exceptional case, whileconfirming the conviction under Section 304 part II IPC, the sentenceimposed on the appellant is reduced to one of imprisonment alreadyundergone. The daughter of the appellant is accordingly directed topay a sum of Rs.20,000/- to P.W.1 within a period of six weeks fromthe date of receipt of a copy of this order. The appeal is disposedof on the above terms. cshSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Judicial Magistrate, Perundurai.2. do thro' The Chief Judicial Magistrate, Erode.3. The Principle Sessions Judge, Erode. 4. The Superintendent, Central Prison, Coimbatore.5. The Public Prosecutor, High Court, Madras.6. The Inspector of Police, Uthukuli Police Station, Erode District.+ 1 cc to Mr. N. Manokaran, Advocate SR No. 1280KSJ(CO)SR/3.2.2007Crl. Appeal No.1052 of 2000