GABRIEL Vs. STATE

JUDGEMENT

(1.) THE appellant who was charged of an offence under Section 302, Indian Penal Code, but convicted under Section 304, Part II, Indian Penal Code, and sentenced to undergo rigorous imprisonment for a period of three years, has preferred this criminal appeal, challenging the abovesaid conviction and sentence passed by the learned Sessions Judge, Kanyakumari in Sessions Case No. 2 of 1974 on his file.

(2.) THE case of the prosecution is as follows : The deceased, Savariaradimai, had two sons viz. , Chelliah and Augustin. Chelliah's son is one Anjalees, who is examined as P. W. 1. The deceased was doing business in tamarind. P. W. 1 was assisting and helping the deceased in his trade. So, the deceased used to give him a share in the profits. This was resented by the second son of the deceased, Augustin. On account of this, there was enmity between P. W. 1 and Savariaradimai on the one side and Augustin on the other side. It is the case of the prosecution that Augustin, with a view to wreak vengeance on his father, induced his friend, the present appellant, to assault his father. It may be noted here that Augustin was himself originally arraigned as the second accused in this case for instigating the present appellant to commit this crime, but he was discharged by the committing Magistrate. It transpires from the evidence that the house of Augustin and the deceased are adjacent and the occurrence in this case took place in front of the house of Augustin. So much so, the houses of P. Ws. 2, 4 and 5 and the tea shop of P. W. 3 are situated near the scene.

(3.) ON the night of 3-10-1973, at 8 p. m. , while Savariaradimai was just leaving his house to the shop of P. W. 2, his second son Augustin, who was standing south of his house, abused the deceased in a vile language. The appellant was also present then and he also joined Augustin in abusing the deceased. Thereupon, the deceased mocked at the appellant, stating that his house is on the side of the bank and there was no necessity for him to go over here and abuse him. The appellant thereafter challenged the deceased to come out to the public : road and see the result. At that time, the deceased got down from the courtyard of his house to the main road. The appellant immediately caught hold of his hands and kicked the deceased with his right leg just below the ambilicus. Then, he released the hands of the deceased who raised an alarm that the appellant was killing him by beating. Thereupon, it is stated that the appellant fisted the deceased with his right hand on the left chest of the deceased who fell down with his face upwards on receipt of the beatings. P. Ws. 1, 2, 3 and 4 who were there, are stated to have witnessed the entire occurrence. On that night, there was moonlight, and there was also a street light at a distance of 70 feet from the scene. In addition, the kerosene lamp M. O. 1 was burning in the shop of P. W. 2. P. W. 1, on seeing his grandfather falling down, ran towards him and picked him up. Savariaradimai stated to P. W. ] that he was beaten by Gabriel, the appellant, and that he would die and he should be rushed to the Hospital immediately. P. W. 1 led him by walk by supporting him towards the direction of the lamp post. Savariaradimai became unconscious. P. W. 5, who came there, brought water as requested by P. W. 1 and sprinkled the same on the face of the deceased. But, Savariaradimai did not regain his consciousness. P. Ws. 1 and 2 lifted Savariaradimai and took him to the house of Augustin, where he was laid down. At that time, it was found that Savariaradimai was dead. Thereupon, P. W. 1 went to the Kollangade police station at 10 P. M. and laid a complaint Ex. P-1 before P. W. 10, the Sub-Inspector of Police, who registered the same as Crime No. 265 of 1973, under Section 302 read with Section 34, Indian Penal Code, against the appellant and Augustin. The original first information report is marked as Ex. P-10. P. W. 10 then reached the scene by 12. 00 midnight. P. W. 11, the Inspector of Police, Vila-vankode, arrived at the scene at about 0. 15 a. m. and took up investigation from P. W. 10, He prepared an observation Mahazar and plan and conducted the inquest over the dead body between 12. 30 a. m. and 4 a. m. , and examined P. Ws. 1 to 5. He recovered a pair of slippers (M, O. 3 series) under Ex. P-4 from a place just west of the cattle shed of the deceased. Then, he recovered the hurricane light (M. O. 1) from the shop of P. W. 2 under Ex. P-2.