GOVINDAN Vs. STATE

JUDGEMENT

(1.) GOVINDAN has filed this appeal against his conviction of the murder of his brother Gopal. He is alleged to have inflicted injuries on his brother on 23-10-1972 (Monday) about 5 A. M. near a hut in Athipattu village in Jnw-athi hills. The victim succumbed to the injuries on 4-111972, at 12-55 P. M.

(2.) EVEN the prosecution case is that Gopal, the younger brother, was having sexual intimacy with P. W. 1, the wife of the accused and that it is because the accused discovered them lying together, he inflicted the cuts on Gopal.

(3.) WE must say that the prosecution has been quite fair to the accused. On these facts themselves, accepting the Drosecution case, Exception 1 to Section 300, I. P. C. should have been applied and the conviction should have been under Section 304, Part I. I. P. C. Somehow, even the learned Public Prosecutor, at the end of the case, seems to have told the learned Sessions Judge (vide para 21 of the lower Court's judgment) that the accused followed Gopal chasing him for a considerable distance and that, therefore, though the provocation was grave, it was not sudden. This is very unfortunate, because we are satisfied that the distance for which the accused chased his brother was only 45 yards. The place of occurrence was 'a' in the sketch Ex. P17, and the place where Gopal and the accused's wife had been sleeping was 'b'. The distance is mentioned as 45 yards in the observation mahazar Ex. P-7 which is reproduced in the plan Ex. P-17 drawn by the Police. That is conceded before us in all fairness by Sri Kolandaivelu who represents the learned Public Prosecutor.