KRISHNAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order dated 10.2.2000 of the Madras High Court in Criminal Appeal No.571/1989. The appellant and his son Samivel were accused 1 and 2 in Sessions Case No.139/1987 on the file of the Sessions Judge, South Arcot district. The appellant was tried for the offence of murdering his elder brother Rathina Gounder. The appellant and his son Samivel were also charged with the offence of causing hurt to Elumalai (son of the deceased). The trial court vide judgment dated 27.4.1989 convicted the appellant under section 302 IPC, and sentenced him to undergo life imprisonment. The trial court also convicted both the appellant and his son Samivel under section 323 IPC and sentenced them to 3 months rigorous imprisonment. In a separate proceeding, in SC.No.140/1987, Sekar, the juvenile son of the appellant, was also found guilty for causing hurt to Elumalai and was ordered to be detained in a juvenile home for six months.

(2.) Feeling aggrieved, the appellant and his first son Samivel filed Crl.A. No.571/1989 and Sekar filed a separate appeal in Crl.A. No.629/1989. Both appeals were disposed of by the High Court by a common judgment dated 10.2.2000. Criminal Appeal No.571/1989 was allowed in part. The conviction and sentence imposed on the appellant under section 302 was set aside and instead, he was convicted for the offence punishable under section 304, Part II, IPC, and sentenced to undergo RI for 5 years. The conviction and sentence of the appellant and his son Samivel under section 323 was not disturbed. Criminal A.No.629/1989 filed by the appellants juvenile son Sekar was allowed and he was acquitted. Aggrieved by his conviction under section 304, Part II, the appellant has filed this appeal, contending that he ought to have been acquitted by accepting his plea of self-defence.

(3.) The prosecution case, in brief, was as follows : The appellant and his elder brother Rathina Gounder were residing with their respective families in two adjoining portions, with a common open yard in front of their houses. The appellant used to tether his bullocks in the common yard. There was also an open sewage drain in the common yard. To prevent pigs coming to the drain and causing nuisance, Rathina Gounders wife Kasiammal covered the said drain with thorn sticks on or about 5th or 6th of June, 1997. The appellant removed the thorn sticks as they came in the way of tethering his bullocks. There was a simmering discord for about 3 days about the thorn fencing of the drain between the families of the two brothers, that is, Rathina Gounder, his wife Kasiammal and his son Elumalai on the one hand, and appellant (Krishnan) and his two sons Samivel and Sekar on the other. On 9.6.1987 at about 5 p.m., the appellant removed the thorn sticks which had been placed by Kasiammal. Elumalai (PW-1) put back the thorn sticks in place. At about 8 p.m., the appellant again removed the thorn sticks and tethered his bullocks. Rathina Gounder who saw the thorn sticks being removed, came and replaced the thorn sticks over the drain. The appellant again removed them. The action of Rathina Gounder placing the thorn sticks over the drain and the appellant removing them, went on for a while and a quarrel developed. The appellant told Rathina Gounder "You are always doing like this. I will see." and took one of the thorn sticks lying on the ground and hit Rathina Gounder on his head. When the appellant tried to hit Rathina Gounder with the thorn stick for a second time, his son Elumalai tried to intervene and received the blow causing injury to his right palm. Thereafter the appellant pushed Rathina Gounder who fell down and a protruding stone pierced near the arm-pit. The appellant again hit Elumalai on his forehead with the thorn stick. His two sons Samivel and Sekar also hit Elumalai. Thereafter, appellant and his two sons ran away. Elumalai collected the thorn stick dropped by the appellant and kept it. By then it was about 10 P.M. Rathina Gounder was taken to Thirukovilur Government Hospital. Dr. Bhaskaran (PW-3) examined him and referred him for further treatment to Cuddalore Government Hospital. However, Kasiammal and others took Rathina Gounder to Jipmer Hospital, Pondicherry where Rathina Gounder succumbed to his injuries on 12.6.1987 at about 12.45 p.m. Elumalai also got himself examined at Thirukovilur Government Hospital. When he was in the said hospital, on 10.6.1997 at about 6.00 A.M., the Sub-Inspector of Police attached to Arakandanathur Police Station came and enquired about the incident and recorded his complaint.