LAKSHMANAN Vs. LAKSHMANAN

JUDGEMENT

(1.) CRIMINAL Appeal No. 13 of 1962 has been preferred by the accused 1 and 2 against the conviction and sentence passed by the Additional Sessions fudge, salem, imposing a sentence of rigorous imprisonment for 5 years on the first accused for an offence Under Section 304, Indian Penal Code and a sentence of rigorous imprisonment for one year upon the 2nd accused for an offence Under section 324 Indian Penal Code. Criminal Appeal No. 330 of 1962 has been preferred by the State against the order of acquittal of 1st accused for an offence under Section 302 Indian Penal Code and the complete acquittal of the 3rd accused under Section 307 Indian Penal Code.

(2.) ON an anxious consideration of the evidence and the probabilities of the case, we have come to the conclusion that the prosecution has not placed before the court a true picture of the incident and the defence of the accused appears to be substantially true and probable, and that in any event the accused should be given the benefit of doubt. We are clearly satisfied that, on the prosecution evidence itself, the plea of self-defence raised by the accused has been amply made out. Before we proceed further it may be relevant to point out at the outset that the learned Sessions Judge in several portions of his judgment has disbelieved the evidence adduced by the prosecution as to the setting and the manner in which the occurrence took place and his own reasonings do not warrant the conviction of the accused. Even though the accused squarely raised the plea of self-defence and had also cross-examined the witnesses examined on the side of the prosecution making categoric and concrete suggestions about the accused's version of the case, and how the fatal injury was caused in the legitimate exercise of private defence, the learned Sessions Judge in his judgment has not even adverted to this plea. A reading of para 13 of the judgment of the learned Sessions Judge shows that the only question he posed before himself was whether the offence was one under Section 300 Indian Penal Code Exception, 4, or one Under Section 304 Part II indian Penal Code. The third alternative of the right of private defence which was the crux of the defence of the accused has been completely overlooked by the learned Sessions Judge.

(3.) THE facts of the case may be briefly stated. The three accused are the sons of one Sidhan by his junior wife, while one Suruttayyan, P. W. 1, Velayyan, P. W. 2, mari, P. W. 4 and one Perumal are the sons of Sidhan by his deceased senior wife. P. W. 1 had two sons, Ramalingam and Chinnathambi the latter being the victim, who died as a result of the stab injury. The father had effected partition between the sons of his first wife and those of his second wife, and they were living separately. The evidence shows that the relationship between the two sets of sons was anything but cordial, the father showing partiality towards the sons of his second wife. The father who is the talayari of the village appears to have been keen on the second accused taking his place as talayari and this aggravated the ill-feelings between the parties.