GOVINDAN versus STATE REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE on 17 December 2021

1. Leave granted.

2. This Appeal is preferred by the sole appellant in Criminal AppealNo.179 of 2015 filed before the High Court of Judicature at Madras,aggrieved by the judgment and order dated 16.08.2019.

3. By the aforesaid judgment, the High Court has confirmed theconviction of the appellant/accused no.1 in Sessions Case No.42 of 2011on the file of the learned Principal Sessions Judge, Dharmapuri by which,the appellant was convicted for offence under Section 304(ii) of IPCand sentenced to undergo rigorous imprisonment for ten years and topay a fine of Rs.5,000/- in default to undergo three months rigorousimprisonment.

4. The sole appellant was tried along with three other accusedpersons for offences under Sections 302 r/w 34, 307 of IPC and Section3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989. The accused nos.2 to 4 were acquitted of all thecharges, however, the appellant alone was convicted for offence underSection 304(ii) of IPC and was sentenced to undergo rigorousimprisonment for ten years with a fine of Rs.5,000/-.

5. The respondent/complainant and the accused are havingadjoining lands at Kolimekkanur. It is the case of the complainant thatthere is an existing pathway from the land of the accused to go to theland of the complainant party. A Civil Suit was filed by the appellant inO.S.No.146 of 2010 before the Pappireddypatti District Munsif Courtand an injunction order was granted in favour of the appellant. It wasthe case of the prosecution that on the date of occurrence, the accused A

B

C

D

E

F

G

H

Atried to put a fence, so as to block the de facto complainant’s familymembers using the cart track. On the other hand, the case of theappellant/accused is that the de facto complainant tried to lay a new carttrack from the patta land of the appellant. In view of such dispute aboutthe cart track, there was a quarrel in front of the appellant’s house by defacto complainant’s family members. In the said quarrel, female familyBmembers of the appellant namely Ms.Kaliammal and Ms.Rajammalsuffered injuries, which provoked the appellant/accused Govindan toattack on the deceased and cause knife injuries which resulted in deathof the deceased Kamsala.

6. The Trial Court by appreciating oral and documentary evidenceCon record, has recorded a finding that the de facto complainant’s familymembers were the aggressors and they have tried to disturb the peacefulpossession of the accused. The Trial Court also found that the appellantstabbed the deceased, Kamsala with a knife, but there was nopremeditation or pre-planning and it was a sudden quarrel and theDappellant exercised his right of private defence, but exceeded the limit.

7. The High Court while dismissing the Criminal Appeal, hasobserved that when the Civil Suit is pending between the parties and ifat all, the de facto complainant passed through their patta land, theappellant/accused should have availed a remedy before the Civil Court,Ebut should not have attacked the deceased.8. We have heard Mr. S. Nagamuthu, learned senior counselappearing for the appellant and Dr. Joseph Aristotle S., learned counselappearing for the State of Tamil Nadu.

9. This Court by order dated 29.01.2021 issued notice, limited toFthe quantum of punishment. The Trial Court itself has found that therewas a quarrel in front of house of the accused by the de factocomplainant’s family members on the date of incident. It is also clearfrom the evidence on record that on the date of occurrence i.e.13.06.2010, the dispute was only on account of cart track from the landGof accused to reach the land of the complainant. When there was aninterference with the land of the accused, a Civil Suit was filed in whichthere were injunction orders issued by the competent Civil Court. Indeposition, PW-1 also admitted that he along with his father, youngerbrother and mother were put in civil prison for 30 days for violating theorders of the Court. Learned senior counsel for the appellant hasH

contended that the unfortunate incident happened only on account ofcivil dispute and when the complainant’s family members themselveshave assaulted the female family members of the appellant, it provokedthe accused to retaliate on the family members of de facto complainant.The Trial Court itself has recorded a finding that the complainant’s familymembers are aggressors and there was no premeditation or pre- planningand it was a sudden quarrel, where the appellant exercised his right ofprivate defence. It is also submitted that with regard to injuries causedon family members of the appellant, in spite of complaint, no steps weretaken to prosecute the family of the complainant. On the other hand,learned counsel for the respondent-State has submitted that as theappellant was convicted under Section 304(ii) of IPC, as such, no caseis made out to modify the sentence also.

10. In the judgment of this Court in the case of Lakshmi Chandand Anr. v. State of Uttar Pradesh[1], relied on by the learned seniorcounsel for the appellant, this Court has reduced the sentence fromeight years to two years mainly on the ground that the occurrence hadtaken place on spur of the moment without any premeditation and thesame was on account of a dispute between the neighbours with regardto straying cattle. Further, in the judgment of this Court in the case ofMadhavan and Ors. v. State of Tamil Nadu[2], this Court has reducedthe sentence of the accused who was convicted for offence under Section304(ii) of IPC, to five years without disturbing fine amount, mainly onthe ground that incident in question, happened all of a sudden withoutany premeditation and it was a free fight between the members of twofamilies and both sides suffered injuries in the incident. Learned counselfor the respondent-State opposing for modification of sentence, placedreliance on the judgment of this Court in the case of Ram Pyare Mishrav. Prem Shanker and Ors.[3]. In the aforesaid judgment, while reversingthe judgment of the High Court, this Court has convicted the accusedfor offence under Section 304(i) of IPC and imposed the sentence ofeight years.

11. With regard to quantum of sentence, it all depends onbackground facts of the case, antecedents of the accused, whether theassault was premeditated and pre-planned or not, etc. In this case on 1 (2018) 9 SCC 7042 (2017) 15 SCC 5823 (2018) 14 SCC 614

AB

C

D

E

F

G

H

Ahand, it is clear from the evidence on record that there was a disputewith regard to pathway, which the complainant’s family members wereclaiming from the land of the accused. In view of such interference, itappears that the accused filed a Suit and obtained injunction orders fromCivil Court and in spite of the same, for violation of Court orders, thefamily members of the complainant were put behind bars for 30 days.BThe same is evident from the deposition of PW-1. The incident occurredin front of the house of the accused and when the female family membersof the accused were assaulted, the appellant in retaliation seems to haveassaulted the family members of the complainant. Trial Court itself hasrecorded that the de facto complainant’s family members are theCaggressors and they have tried to disturb the peaceful possession of theaccused from their land. The said findings recorded by the Trial Court,became final. The same was not questioned either by the State or by thecomplainant. It is also clearly held by the Trial Court that it was not apremeditated or preplanned incident. It happened in a sudden quarrel onthe day of occurrence i.e. on 14.06.2010.D

12. Having regard to such findings recorded by the Trial Courtitself, which have become final and further, in view of the judgmentsrelied on by the learned senior counsel for the appellant, which supportthe case of the appellant for modifying the sentence, we deem itappropriate that this is a fit case to modify the sentence, to meet theEends of justice.

13. For the aforesaid reasons, while confirming the conviction foroffence under Section 304(ii) of the IPC, we modify the sentence to twoyears’ rigorous imprisonment and to pay a fine of Rs.5,000/-, in defaultto undergo three (03) months’ rigorous imprisonment.

F

14. The Appeal is allowed in part, to the extent as indicated above.

Bibhuti Bhushan Bose

Appeal partly allowed.

G

H