ORDER

1. THE ABOVE APPEAL HAS BEEN FILED BY ACCUSED 1 IN SESSIONS CASE NO. 60 OF 1989 ON THE FILE OF THE LEARNED SESSIONS JUDGE WHO ALONG WITH ACCUSED 2 STOOD CHARGED RESPECTIVELY FOR OFFENCES PUNISHABLE UNDER SECTIONS 302 AND 326 OF THE INDIAN PENAL CODE. ACCUSED 1 WAS CHARGED FOR HAVING CAUSED THE DEATH OF ONE MUNIYANDI AND ACCUSED 2 WAS CHARGED FOR HAVING CAUSED GRIEVOUS HURT WITH A SHARP STICK. THE CASE OF THE PROSECUTION, AS PROJECTED B THROUGH EVIDENCE LET IN, WAS THAT THE DECEASED WHO WAS ON AN ERRAND FOR RAT HUNTING WAS INTERCEPTED BY ACCUSED 1 AND 2, ACCORDING TO WHOM THE DECEASED ATTEMPTED TO STEAL COCONUT FROM THE GARDEN OF WHICH A-1 WAS A WATCHMAN. IN THE PROCESS THEY INFLICTED INJURIES AND THE INJURY INFLICTED BY A-1 ON THE DECEASED ULTIMATELY PROVED TO BE FATAL. ON A REPORT BEING LODGED AND AFTER COMPLETING THE INVESTIGATION AND HAVING GOT THE DEAD BODY EXAMINED BY THE DOCTOR WHO CONDUCTED THE POST-MORTEM EXAMINATION, THE CHARGE, AS NOTICED ABOVE, WAS RAISED AGAINST THE ACCUSED. THE ACCUSED DENIED THE CHARGES RESULTING IN THE TRIAL OF THE CASE IN WHICH 13 WITNESSES WERE EXAMINED FOR THE PROSECUTION AND 15 DOCUMENTS WERE SAID TO HAVE BEEN MARKED. ON A CONSIDERATION OF THE MATERIALS ON RECORD THE LEARNED TRIAL JUDGE CONVICTED ACCUSED 1 UNDER SECTION 304 PART I IPC AND WHILE SENTENCED HIM D TO SEVEN YEARS RIGOROUS IMPRISONMENT, CONVICTED ACCUSED 2 UNDER SECTION 326 IPC IMPOSING ON HIM A SENTENCE OF THREE YEARS RIGOROUS IMPRISONMENT, IN ADDITION TO THE PAYMENT OF FINE OF RS 250 WITH A DEFAULT CLAUSE THEREFOR.

2. THE AGGRIEVED ACCUSED PURSUED THE MATTER ON APPEAL BEFORE THE HIGH COURT IN CA NO. 974 OF 1989. A LEARNED SINGLE JUDGE OF THE HIGH COURT ON REAPPRECIATION OF THE MATERIALS ON RECORD THOUGHT IT FIT TO ALTER THE CONVICTION E FROM SECTION 304 PART I IPC TO ONE UNDER SECTION 304 PART II IPC SO FAR AS ACCUSED 1 IS CONCERNED, AND IMPOSED A SENTENCE OF THREE-AND-A-HALF YEARS RIGOROUS IMPRISONMENT FOR THE SAME. SO FAR AS ACCUSED 2 IS CONCERNED, THE CONVICTION UNDER SECTION 326 IPC, THOUGH WAS MAINTAINED, SENTENCE WAS REDUCED TO TWO YEARS. THE LEARNED JUDGE OF THE HIGH COURT WHILE NOTICING THE F FOUR GOVERNMENT ORDERS DATED 11-4-1990, 23-2-1992, 20-2-1993 AND 23-2-1994 RESPECTIVELY ENUMERATED IN PARAGRAPH 10 OF THE JUDGMENT FELT IT UNNECESSARY SO FAR AS ACCUSED 2 IS CONCERNED, TO SURRENDER, HE BEING ENTITLED TO THE BENEFIT OF REMISSION FOR ALMOST TWO YEARS OF THE ENTIRE PERIOD OF SENTENCE IMPOSED ON HIM. SO FAR AS ACCUSED 1 (THE PRESENT APPELLANT) IS CONCERNED, EVEN AFTER ALLOWING SUCH REMISSION UNDER THE GOVERNMENT ORDERS, THE LEARNED JUDGE DIRECTED THAT HE WILL HAVE TO UNDERGO THE UNEXPIRED PERIOD OF ONE-AND-A-HALF YEARS RIGOROUS IMPRISONMENT. AGGRIEVED BY THE SAME, THIS APPEAL HAS BEEN FILED.

3. HEARD MR R. ANAND PADMANABHAN, LEARNED COUNSEL FOR THE APPELLANT AND MR A.T.M. SAMPATH, LEARNED COUNSEL FOR THE RESPONDENT.

4. MR R. ANAND PADMANABHAN, LEARNED COUNSEL FOR THE APPELLANT WHILE PLACING RELIANCE UPON THE DECISION OF THIS COURT IN STATE OF ORISSA V. ON BHAGABAN BARIK1 STRENUOUSLY CONTENDED THAT THE APPELLANT WAS ONLY DISCHARGING HIS DUTIES AS A WATCHMAN OF THE COCONUT GARDEN AND IN GOOD FAITH AND UNDER MISTAKE OF FACT INFLICTED AN INJURY WHICH, AS MISFORTUNE WOULD HAVE IT, RESULTED IN THE DEATH OF THE VICTIM THOUGH NOT INSTANTANEOUSLY BUT ON THE NEXT DAY AND THAT TOO ON ACCOUNT OF INDIFFERENCE AND CARELESSNESS ON THE PART OF THE INJURED IN NOT GETTING PROPER MEDICAL TREATMENT AND THAT, THEREFORE, THE APPELLANT OUGHT NOT TO HAVE BEEN CONVICTED AND SHOULD HAVE BEEN REALLY EXONERATED FROM THE OFFENCE. LEARNED COUNSEL INVITED OUR ATTENTION TO THE RELEVANT PORTIONS OF THE JUDGMENTS OF THE COURTS BELOW IN SUPPORT OF HIS CLAIM. PER CONTRA, MR A.T.M. SAMPATH, LEARNED COUNSEL APPEARING FOR THE STATE, WITH EQUAL VEHEMENCE, CONTENDED THAT THE DECISION RELIED UPON WILL HAVE NO APPLICATION TO THE FACTS OF THE CASE IN HAND AND THAT THE APPELLANT CANNOT CLAIM TO HAVE ACTED EITHER IN GOOD FAITH OR ON ANY MISTAKE OF FACT HAVING