SAMUTHRA PANDI Vs. STATE

JUDGEMENT

(1.) THE appellants are accused in S. C. No. 199 of 1999 on the file of the Additional District Judge, (Fast Track Court No. 1), Tuticorin. THE first appellant was convicted for an offence under section 302 IPC to undergo imprisonment for life and the second appellant was convicted for an offence under Section 302 r/w. 34 IPC to undergo rigorous imprisonment for life and under Section 341 IPC to undergo rigorous imprisonment for one month.

(2.) THE brief facts of the case are as follows: - A-1 and A-2 are brothers. P. W. 1 is younger brother of a. 1. Along with P. W. 1, he had 4 other brothers and 4 sisters. P. W. 1 had 3 male children and 2 female children. THE last child is the deceased Krishnan, aged 7 months at the time of occurrence. About 10 years prior to the date of occurrence i. e. , 29. 11. 1996, P. W. 1's father died. Another accused concerned in this case by name Murugan who is also the brother of P. W. 1 died before trial. During the life time of the father of P. W. 1, P. Ws 1, A. 1 and A. 2 got married and thereafter two other sisters got married. One Padmini, a sister was not married. On 28. 11. 1996, in the morning. , Murugan and A. 1 came to the house of p. W. 1 and asked for contribution for making jewels for their sister Padmini. P. W. 1 replied "you get my elder brother's share, then I will pay my contribution". THE next day, i. e. , 29. 11. 1996 at about 9. 00 a. m. , A. 1 and A. 2 and the deceased Murugan came to the house of P. W. 1. A. 1 was having a stick; A. 2 and Murugan were having stones in their hands. P. W. 1 came afraid on seeing them. After taking his child, Krishnan in his hands, P. W. 1 tried to escape. THEn A. 2 saying to other accused "kill him by beating" chased P. W. 1. P. W. 1's wife was running behind them. In front of the house of Mahalinga Nadar, A. 2 and deceased Murugan blocked P. W. 1. A. 1 by saying "you are having 3 male children and your number of male children must be reduced and so saying he beat the child with a casuina stick, m. O. 1 on the left side head of the child. When he attempted to beat the child again and again, P. W. 1 prevented such assaults. A. 1 also assaulted P. W. 1 below his left knee. P. W. 1 did not want to take immediate action since the accused were brothers. THE child was wheezing and after leaving the child to the care of his wife, P. W. 1 went to attend his job. P. W. 1's wife took the child to a local hospital where it was declared dead. P. W. 1 returned from his job in the evening and came to know about the death of the child at 7. 00 pm. , he lodged a complaint at Nazereth Police Station. THE said complaint is Ex. P. 1. P. W. 13, head Constable who received Ex. P. 1 complaint from P. W. 1, registered a case in crime No. 340 of 1996 under sections 341, 323, and 302 IPC and the original printed FIR copy Ex. P. 15 was sent to Judicial Magistrate, Tiruchendur and the copies were sent to higher police officials. P. W. 14, Inspector of Police visited the place of occurrence at about 7. 30 p. m. , in the presence of P. W. 6 and one Periya Nadar. He also prepared a observation mahazar Ex. P. 3 and a sketch Ex. P. 16. On the same day, at 9. 30 p. m. , in the presence of Panchayatdars he conducted inquest on the body of the deceased child and prepared Ex. P. 17 inquest report and arranged to send the body for postmortem.

(3.) THE learned counsel for the appellant would contend that the accused have no intention to murder the child because they have no enmity with the child. But they wanted to inflict some injury to P. W. 1, which might have accidentally fell on the child, resulting the death of the child and in the absence of any intention to cause the death of the child, the offence alleged against the accused cannot be brought under section 302 IPC, but it is only an offence under section 304 Part II IPC.