TMI Blog1999 (3) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... tal passed by the learned Additional Sessions Judge so far as the son is concerned but reversed the order of acquittal of the appellant herein and convicted him under Section 302 as well as under Section 324 IPC. For his conviction under Section 302 IPC, he was sentenced to imprisonment for life and no separate sentence was passed for his conviction under Section 324. 2. The prosecution case in the nutshell is that the relationship between the accused and the deceased Kesava Pillai was strained as the deceased had helped one Velu Pillai with whom the accused had some property dispute. On 17.4.85 at 11 P.M. while PW1 was sitting on the varandah of a shop near his own house, the accused-appellant and his wife passed by that way. As it was dark, PW1 could not recognise them and enquired about their identity, whereupon the accused-appellant used some abusive language and PW1 in turn, also abused the appellant. On this score, there was a scuffle but on the dissuasion of the wife of the appellant, he left the place. Few minutes later while PW1 reached the door-step of his house, the appellant accompanied by his son (the acquitted accused) reached there and the second accused dealt a b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removed them to the hospital and PWs 2 and 3 were never at the scene of occurrence. On the basis of the medical evidence of the doctor, who treated deceased Kesava Pillai in the hospital and the post-mortem report, the learned Sessions Judge came to the conclusion that deceased Kesava Pillai died as a result of penetrating injuries sustained on his abdomen and the death is homicidal in nature. Examining the question as to whether it is the appellant who caused the injury on the deceased by stabbing blow with the means of a knife, the learned Sessions Judge scrutinised the evidence of PWs 1-3 and also scrutinised the medical evidence with relation to the injury found on the deceased as well as the injury found on the person of PW1 and came to hold that the story of alleged cause of injury on the occipital region of PW1 as spoken to by the eye witnesses stand totally discredited and disproved by the evidence of PW14 and the injury certificate Exhibit P11. The learned Sessions Judge accordingly recorded a finding that the first part of the occurrence regarding the alleged beating on the head of PW1 by the appellant with the stick as spoken by the witnesses stands discredited by the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uittal and, therefore, reversal of an order of acquittal by the High Court should be interfered with. Mr. Lalit also further contended that the very fact that the son of the appellant was falsely implicated by the eye witnesses would itself discredit the witnesses and on such discredited version, the role ascribed to the appellant could not have been relied upon. Mr. Lalit further urged that though the learned Sessions Judge came to the positive conclusion after a thorough analysis of the evidence that the defence plea was more probable but the High Court never focussed its attention to the same and has not discussed any thing on that score, which approach vitiates the impugned judgment. Mr. Lalit also urged before us that the prosecution not having come forward with a true and correct version of the occurrence, the accused is entitled to the benefit of doubt and, therefore, the order of acquittal should not have been interfered with by the High Court. Lastly, Mr. Lalit urged that even assuming the blow given by the appellant on the deceased can be said to have been established beyond reasonable doubt but that would not constitute the offence under Section 302 and at the most the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttal. We find the approach of the learned Sessions Judge in recording an order of acquittal was not proper and the conclusion arrived at by the Sessions Judge on several aspects is unsustainable. Even though, the eye witnesses appear to have exaggerated their version and improved upon their version in giving a role to the accused No. 2 for which an order of acquittal passed by the Sessions Judge has been affirmed by the High Court but to bring home the charge of murder against the appellant on the ground that he gave a stabbing blow on the deceased on a vital part by means of a knife, while he came out of his house has been consistently narrated by the three eye witnesses. There has been no embellishment or exaggeration of these eye witnesses so far as the role ascribed to the appellant from their previous version to the Police is concerned. Thus the basic prosecution case as unfolded through the testimony of the aforesaid three witnesses is fully corroborated by the medical evidence of the two doctors and, therefore, the learned Sessions Judge was not justified in discarding this part of the prosecution case and in acquitting the appellant and the High Court, therefore, was fully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the inflicted injury. Thus it is established beyond reasonable doubt that the appellant had given one blow but the blow no-doubt was quite severe, as a result of which the intestines had protruded out. It is however crystal clear that the appellant had no animosity against the deceased and he was involved because of the altercations with PW1. The scenario in which the appellant has been stated by the eye witnesses to have given one blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he can have said to have the requisite knowledge that the death would otherwise be the inevitable result. In such a situation, even on accepting the prosecution case we hold that the accused did not commit the offence under Section 302 but under part II of Section 304 IPC. We accordingly, set aside the conviction of the appellant under Section 302 IPC and instead, convict him under Section 304 Part II. The incident is of the year 1985 and more than 13 years have elapsed. The accused is on bail pursuant to the orders of this Court dated 6th February, 1992. Mr. Lalit, appearing for the accused-appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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