GOVINDANversusSTATE REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE

                          [2021] 9 S.C.R. 515                            515


                            GOVINDAN                                     A
                                  v.
STATE REPRESENTED BY THE DEPUTY SUPERINTENDENT
                   OF POLICE
                 (Criminal Appeal No. 1665 of 2021)                      B
                       DECEMBER 17, 2021
    [R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
       Sentence / Sentencing – Quantum of punishment – Appellant
convicted by trial court u/s.304(II) IPC and sentenced to undergo
                                                                         C
rigorous imprisonment for ten years – Conviction and sentence
confirmed by High Court – Issue before Supreme Court limited to
quantum of punishment – Held: With regard to quantum of sentence,
it all depends on background facts of the case, antecedents of the
accused, whether the assault was pre-meditated and pre-planned
or not, etc. – In the present case, there was a dispute with regard to   D
pathway, which the complainant’s family members were claiming
from the land of the accused – The incident occurred in front of the
house of the accused and when the female family members of the
accused were assaulted, the appellant in retaliation seems to have
assaulted the family members of the complainant – Trial Court itself
                                                                         E
recorded that the de facto complainant’s family members were the
aggressors and they tried to disturb the peaceful possession of the
accused from their land – The same was not questioned either by
the State or by the complainant – It was also clearly held by the
Trial Court that it was not a premeditated or pre-planned incident
and happened during a sudden quarrel – Findings recorded by              F
Trial Court have become final – Fit case to modify the sentence, to
meet the ends of justice – Sentence imposed on appellant modified
to two years’ rigorous imprisonment – IPC – s.304(II).
      Partly allowing the appeal, the Court
       HELD:1. With regard to quantum of sentence, it all depends        G
on background facts of the case, antecedents of the accused,
whether the assault was premeditated and pre-planned or not,
etc. In this case on hand, it is clear from the evidence on record
that there was a dispute with regard to pathway, which the
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                                 515
516            SUPREME COURT REPORTS                       [2021] 9 S.C.R.


A     complainant’s family members were claiming from the land of the
      accused. In view of such interference, it appears that the accused
      filed a Suit and obtained injunction orders from Civil Court and
      in spite of the same, for violation of Court orders, the family
      members of the complainant were put behind bars for 30 days.
      The same is evident from the deposition of PW-1. The incident
B
      occurred in front of the house of the accused and when the female
      family members of the accused were assaulted, the appellant in
      retaliation seems to have assaulted the family members of the
      complainant. Trial Court itself has recorded that the de facto
      complainant’s family members are the aggressors and they have
C     tried to disturb the peaceful possession of the accused from their
      land. The said findings recorded by the Trial Court, became final.
      The same was not questioned either by the State or by the
      complainant. It is also clearly held by the Trial Court that it was
      not a premeditated or pre-planned incident. It happened in
      a sudden quarrel on the day of occurrence. [Para 11][519-G-H;
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      520-A-D]
            2. Having regard to such findings recorded by the Trial
      Court itself, which have become final and further, in view of the
      judgments relied on by the appellant, which support the case of
      the appellant for modifying the sentence, this is a fit case to modify
E     the sentence, to meet the ends of justice. For the aforesaid
      reasons, while confirming the conviction for offence under Section
      304(ii) of the IPC, the sentence is modified to two years’ rigorous
      imprisonment. [Paras 12, 13][520-D-F]
            Lakshmi Chand and Anr. v. State of Uttar Pradesh,
F           (2018) 9 SCC 704; Madhavan and Ors. v. State of Tamil
            Nadu, (2017) 15 SCC 582 and Ram Pyare Mishra v.
            Prem Shanker and Ors., (2008) 14 SCC 614 : [2008]
            12 SCR 497 – referred to.
                             Case Law Reference
G
      (2018) 9 SCC 704                referred to             Para 10
      (2017) 15 SCC 582               referred to             Para 10
      [2008] 12 SCR 497               referred to             Para 10

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   GOVINDAN v. STATE REPRESENTED BY THE DEPUTY                               517
           SUPERINTENDENT OF POLICE

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                       A
No.1665 of 2021.
      From the Judgment and Order dated 16.08.2019 of the High Court
of Judicature at Madras in Crl.A. No.179 of 2015.
      S. Nagamuthu, Sr. Adv., M. P. Parthiban, R. Sudhakaran, Mrs.
Shalini Mishra, Advs. for the Appellant.                                     B

      Dr. Joseph Aristotle S., Ms. Preeti Singh, Sanjeev Kumar Mahara,
Advs. for the Respondent.
      The Judgment of the Court was delivered by
      R. SUBHASH REDDY, J.                                                   C
      1. Leave granted.
      2. This Appeal is preferred by the sole appellant in Criminal Appeal
No.179 of 2015 filed before the High Court of Judicature at Madras,
aggrieved by the judgment and order dated 16.08.2019.
                                                                             D
       3. By the aforesaid judgment, the High Court has confirmed the
conviction of the appellant/accused no.1 in Sessions Case No.42 of 2011
on the file of the learned Principal Sessions Judge, Dharmapuri by which,
the appellant was convicted for offence under Section 304(ii) of IPC
and sentenced to undergo rigorous imprisonment for ten years and to
pay a fine of Rs.5,000/- in default to undergo three months rigorous         E
imprisonment.
      4. The sole appellant was tried along with three other accused
persons for offences under Sections 302 r/w 34, 307 of IPC and Section
3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. The accused nos.2 to 4 were acquitted of all the      F
charges, however, the appellant alone was convicted for offence under
Section 304(ii) of IPC and was sentenced to undergo rigorous
imprisonment for ten years with a fine of Rs.5,000/-.
       5. The respondent/complainant and the accused are having
adjoining lands at Kolimekkanur. It is the case of the complainant that      G
there is an existing pathway from the land of the accused to go to the
land of the complainant party. A Civil Suit was filed by the appellant in
O.S.No.146 of 2010 before the Pappireddypatti District Munsif Court
and an injunction order was granted in favour of the appellant. It was
the case of the prosecution that on the date of occurrence, the accused      H
518            SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     tried to put a fence, so as to block the de facto complainant’s family
      members using the cart track. On the other hand, the case of the
      appellant/accused is that the de facto complainant tried to lay a new cart
      track from the patta land of the appellant. In view of such dispute about
      the cart track, there was a quarrel in front of the appellant’s house by de
      facto complainant’s family members. In the said quarrel, female family
B
      members of the appellant namely Ms.Kaliammal and Ms.Rajammal
      suffered injuries, which provoked the appellant/accused Govindan to
      attack on the deceased and cause knife injuries which resulted in death
      of the deceased Kamsala.
            6. The Trial Court by appreciating oral and documentary evidence
C     on record, has recorded a finding that the de facto complainant’s family
      members were the aggressors and they have tried to disturb the peaceful
      possession of the accused. The Trial Court also found that the appellant
      stabbed the deceased, Kamsala with a knife, but there was no
      premeditation or pre-planning and it was a sudden quarrel and the
D     appellant exercised his right of private defence, but exceeded the limit.
             7. The High Court while dismissing the Criminal Appeal, has
      observed that when the Civil Suit is pending between the parties and if
      at all, the de facto complainant passed through their patta land, the
      appellant/accused should have availed a remedy before the Civil Court,
E     but should not have attacked the deceased.
            8. We have heard Mr. S. Nagamuthu, learned senior counsel
      appearing for the appellant and Dr. Joseph Aristotle S., learned counsel
      appearing for the State of Tamil Nadu.
             9. This Court by order dated 29.01.2021 issued notice, limited to
F     the quantum of punishment. The Trial Court itself has found that there
      was a quarrel in front of house of the accused by the de facto
      complainant’s family members on the date of incident. It is also clear
      from 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 land
G     of accused to reach the land of the complainant. When there was an
      interference with the land of the accused, a Civil Suit was filed in which
      there were injunction orders issued by the competent Civil Court. In
      deposition, PW-1 also admitted that he along with his father, younger
      brother and mother were put in civil prison for 30 days for violating the
      orders of the Court. Learned senior counsel for the appellant has
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     GOVINDAN v. STATE REPRESENTED BY THE DEPUTY                              519
    SUPERINTENDENT OF POLICE [R. SUBHASH REDDY, J.]

contended that the unfortunate incident happened only on account of           A
civil dispute and when the complainant’s family members themselves
have assaulted the female family members of the appellant, it provoked
the accused to retaliate on the family members of de facto complainant.
The Trial Court itself has recorded a finding that the complainant’s family
members are aggressors and there was no premeditation or pre- planning
                                                                              B
and it was a sudden quarrel, where the appellant exercised his right of
private defence. It is also submitted that with regard to injuries caused
on family members of the appellant, in spite of complaint, no steps were
taken to prosecute the family of the complainant. On the other hand,
learned counsel for the respondent-State has submitted that as the
appellant was convicted under Section 304(ii) of IPC, as such, no case        C
is made out to modify the sentence also.
       10. In the judgment of this Court in the case of Lakshmi Chand
and Anr. v. State of Uttar Pradesh1, relied on by the learned senior
counsel for the appellant, this Court has reduced the sentence from
eight years to two years mainly on the ground that the occurrence had         D
taken place on spur of the moment without any premeditation and the
same was on account of a dispute between the neighbours with regard
to straying cattle. Further, in the judgment of this Court in the case of
Madhavan and Ors. v. State of Tamil Nadu2, this Court has reduced
the sentence of the accused who was convicted for offence under Section
304(ii) of IPC, to five years without disturbing fine amount, mainly on       E
the ground that incident in question, happened all of a sudden without
any premeditation and it was a free fight between the members of two
families and both sides suffered injuries in the incident. Learned counsel
for the respondent-State opposing for modification of sentence, placed
reliance on the judgment of this Court in the case of Ram Pyare Mishra        F
v. Prem Shanker and Ors.3. In the aforesaid judgment, while reversing
the judgment of the High Court, this Court has convicted the accused
for offence under Section 304(i) of IPC and imposed the sentence of
eight years.
      11. With regard to quantum of sentence, it all depends on               G
background facts of the case, antecedents of the accused, whether the
assault was premeditated and pre-planned or not, etc. In this case on

1
  (2018) 9 SCC 704
2
  (2017) 15 SCC 582
3
  (2018) 14 SCC 614                                                           H
520             SUPREME COURT REPORTS                          [2021] 9 S.C.R.


A     hand, it is clear from the evidence on record that there was a dispute
      with regard to pathway, which the complainant’s family members were
      claiming from the land of the accused. In view of such interference, it
      appears that the accused filed a Suit and obtained injunction orders from
      Civil Court and in spite of the same, for violation of Court orders, the
      family members of the complainant were put behind bars for 30 days.
B
      The same is evident from the deposition of PW-1. The incident occurred
      in front of the house of the accused and when the female family members
      of the accused were assaulted, the appellant in retaliation seems to have
      assaulted the family members of the complainant. Trial Court itself has
      recorded that the de facto complainant’s family members are the
C     aggressors and they have tried to disturb the peaceful possession of the
      accused from their land. The said findings recorded by the Trial Court,
      became final. The same was not questioned either by the State or by the
      complainant. It is also clearly held by the Trial Court that it was not a
      premeditated or preplanned incident. It happened in a sudden quarrel on
      the day of occurrence i.e. on 14.06.2010.
D
              12. Having regard to such findings recorded by the Trial Court
      itself, which have become final and further, in view of the judgments
      relied on by the learned senior counsel for the appellant, which support
      the case of the appellant for modifying the sentence, we deem it
      appropriate that this is a fit case to modify the sentence, to meet the
E     ends of justice.
             13. For the aforesaid reasons, while confirming the conviction for
      offence under Section 304(ii) of the IPC, we modify the sentence to two
      years’ rigorous imprisonment and to pay a fine of Rs.5,000/-, in default
      to 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.


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