MADATHODIYIL CHEROOTTY PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) Quite recently we have had occasion to consider a similar question, viz., whether a calendar revision is competent in a case like this. In Chellappan v. State (Crl. Appeal No. 289 of 1969 & Calendar Revision No. 28 of 1969 notice having been issued in calendar revision by the same learned Judge, Krishnamoorthy Iyer J.) we have made the position clear referring to the earlier decisions on the question. We have referred to the decisions in State of Andhra Pradesh v. Thadi Narayana ( AIR 1962 SC 240 ), Gopalan v. State of Kerala ( 1961 KLT 1088 ), Kishan Singh v. Emperor ( AIR 1928 PC 254 ) and State of Kerala v. Venkita Rao (Cal. Rev. No. 15 of 1969). If an accused was charged under S.302 (a higher offence) but has been convicted under S.304 or S.326 (a lesser offence), he is acquitted of the more serious offence, so that in revision such acquittal cannot be altered into one of conviction because S.439(4) of the Code of Criminal Procedure is a bar to such alteration. What we can do in revision is only to enhance the sentence on the same conviction or to order a retrial: but we cannot convict the accused under S.302 as suggested by Krishnamoorthy Iyer J. in the revision notice. And our powers of retrial can be exercised only in cases of failure of justice, miscarriage of justice, glaring defect in procedure, manifest error of law, etc. Even in such cases this Court should be very careful in not making any observation on merits which may have the effect of loading the dice against the accused.

(2.) In the case before us the accused was charged under S.302 of the Penal Code but was convicted and sentenced only under S.326. The learned Judge who perused the calendar issued notice to the accused to show cause why the conviction should not be under S.302 of the Penal Code. As we have already indicated, since the accused was convicted only under S.326 and acquitted under S.302, the said acquittal under S.302 cannot be altered in revision into one of conviction under the same section. That can be done only if there is an appeal by the State against the acquittal under S.302. Therefore, the calendar revision has only to be dismissed.

(3.) Now about the merits of the appeal by the accused. Pws. 1 and 2 are the son inlaw and, the daughter respectively of the deceased, Swaminatha Pillai. The appellant, a near relation of Swaminatha Pillai, was living with Pws. 1 and 2 and working under them more or less as their domestic servant. There was a litigation between Pw.2 and her sister inlaw, the sister of Pw. 1, and Swaminatha Pillai was attending to the litigation. Pws. 1 and 2 wanted the matter to be compromised; and they told the appellant to tell the other side and bring them round for a compromise. The appellant attempted this too; and this Swaminatha Pillai did not like. On the fateful night (17th May 1969), Pw. 1 and Swaminatha Pillai returned home late, when Pw.2 was sleeping inside the house and the appellant was sleeping on a cot on the verandah. Pw.1 came to the verandah, switched on the light and called his wife, when Swaminatha Pillai also came to the verandah and asked the appellant why he was interfering with the litigation when it was actually pending. The appellant replied that, after all, his attempt was to bring about peace. Swaminatha Pillai did not like this; and he beat the appellant with his umbrella. The appellant got up, went to the courtyard and took a stick with which he beat Swaminatha Pillai. The blow somehow did not hit Swaminatha Pillai, but hit the wall breaking the stick. Pws.1 and 2 intervened, separated the parties and pushed Swaminatha Pillai into the house. The appellant also entered the room with the broken stick and tried again to beat Swaminatha Pillai, when Swaminatha Pillai took a knife from his loins, opened it and attempted to stab the appellant. Pws. 1 and 2 again intervened, and they sustained some small injuries. They pushed Swaminatha Pillai into the southern room and bolted both the doors. The knife fell down from the hands of Swaminatha Pillai and the appellant took it and went out of the room. Then he tried to break open one of the doors, wherein he succeeded. The latch behind the door broke; and the appellant entered the room and stabbed Swaminatha Pillai once. When he stabbed Swaminatha Pillai, Pws. 1 and 2 again intervened and Pw.2 caught hold of Swaminatha Pillai. In spite of that, he stabbed Swaminatha Pillai once and ran away. Pws. 3 and 6 were at the gate of the house; and they also saw the incident. The appellant also told them that Swaminatha Pillai stabbed him and he stabbed Swaminatha Pillai too. The appellant then proceeded to the house of Pw.7. to whom also he said that Swaminatha Pillai stabbed him and he stabbed Swaminatha Pillai.