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CASE NO.:

Appeal (crl.) 631 of 2000

PETITIONER:

Krishnan

RESPONDENT:

State of Tamil Nadu

DATE OF JUDGMENT: 14/08/2006

BENCH:

G P Mathur & R V Raveendran

JUDGMENT:

J U D G M E N T

RAVEENDRAN, J.

This appeal by special leave is directed against the judgment and

order dated 10.2.2000 of the Madras High Court in Criminal Appeal

No.571/1989. The appellant and his son Samivel were accused 1 and 2

in Sessions Case No.139/1987 on the file of the Sessions Judge, South

Arcot district. The appellant was tried for the offence of murdering his

elder brother Rathina Gounder. The appellant and his son Samivel

were also charged with the offence of causing hurt to Elumalai (son of

the deceased). The trial court vide judgment dated 27.4.1989

convicted the appellant under section 302 IPC, and sentenced him to

undergo life imprisonment. The trial court also convicted both the

appellant and his son Samivel under section 323 IPC and sentenced

them to 3 months' rigorous imprisonment. In a separate proceeding, in

SC.No.140/1987, Sekar, the juvenile son of the appellant, was also

found guilty for causing hurt to Elumalai and was ordered to be

detained in a juvenile home for six months.

2. Feeling aggrieved, the appellant and his first son Samivel filed

Crl.A. No.571/1989 and Sekar filed a separate appeal in Crl.A.

No.629/1989. Both appeals were disposed of by the High Court by a

common judgment dated 10.2.2000. Criminal Appeal No.571/1989

was allowed in part. The conviction and sentence imposed on the

appellant under section 302 was set aside and instead, he was

convicted for the offence punishable under section 304, Part II, IPC,

and sentenced to undergo RI for 5 years. The conviction and sentence

of the appellant and his son Samivel under section 323 was not

disturbed. Criminal A.No.629/1989 filed by the appellant's juvenile son

Sekar was allowed and he was acquitted. Aggrieved by his conviction

under section 304, Part II, the appellant has filed this appeal,

contending that he ought to have been acquitted by accepting his plea

of self-defence.

3. The prosecution case, in brief, was as follows :

3.1) The appellant and his elder brother Rathina Gounder were

residing with their respective families in two adjoining portions, with a

common open yard in front of their houses. The appellant used to

tether his bullocks in the common yard. There was also an open

sewage drain in the common yard. To prevent pigs coming to the drain

and causing nuisance, Rathina Gounder's wife Kasiammal covered the

said drain with thorn sticks on or about 5th or 6th of June, 1997. The

appellant removed the thorn sticks as they came in the way of

tethering his bullocks. There was a simmering discord for about 3 days

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about the thorn fencing of the drain between the families of the two

brothers, that is, Rathina Gounder, his wife Kasiammal and his son

Elumalai on the one hand, and appellant (Krishnan) and his two sons

Samivel and Sekar on the other.

3.2) On 9.6.1987 at about 5 p.m., the appellant removed the thorn

sticks which had been placed by Kasiammal. Elumalai (PW-1) put back

the thorn sticks in place. At about 8 p.m., the appellant again removed

the thorn sticks and tethered his bullocks. Rathina Gounder who saw

the thorn sticks being removed, came and replaced the thorn sticks

over the drain. The appellant again removed them. The action of

Rathina Gounder placing the thorn sticks over the drain and the

appellant removing them, went on for a while and a quarrel developed.

The appellant told Rathina Gounder "You are always doing like this. I

will see." and took one of the thorn sticks lying on the ground and hit

Rathina Gounder on his head. When the appellant tried to hit Rathina

Gounder with the thorn stick for a second time, his son Elumalai tried

to intervene and received the blow causing injury to his right palm.

Thereafter the appellant pushed Rathina Gounder who fell down and a

protruding stone pierced near the arm-pit. The appellant again hit

Elumalai on his forehead with the thorn stick. His two sons Samivel

and Sekar also hit Elumalai. Thereafter, appellant and his two sons ran

away. Elumalai collected the thorn stick dropped by the appellant and

kept it. By then it was about 10 P.M.

3.3) Rathina Gounder was taken to Thirukovilur Government Hospital.

Dr. Bhaskaran (PW-3) examined him and referred him for further

treatment to Cuddalore Government Hospital. However, Kasiammal

and others took Rathina Gounder to Jipmer Hospital, Pondicherry

where Rathina Gounder succumbed to his injuries on 12.6.1987 at

about 12.45 p.m.

3.4) Elumalai also got himself examined at Thirukovilur Government

Hospital. When he was in the said hospital, on 10.6.1997 at about

6.00 A.M., the Sub-Inspector of Police attached to Arakandanathur

Police Station came and enquired about the incident and recorded his

complaint.

4. The prosecution examined 13 witnesses. Elumalai (PW-1),

Thangaraj (PW-2), Pitchaimuthu (PW-4) and Kasiammal (PW-5) were

the eye-witnesses. Elumalai, son of the deceased was an injured eye-

witness. Kasiammal was the widow of the deceased, Thangaraj was

the nephew of both Rathina Gounder and the appellant, Thangaraj and

Pitchaimuthu were neighbours. All the four eye-witnesses narrated the

incident broadly in accordance with the prosecution case. They also

stated that as there was a street-light nearby they could see what

happened clearly. M. Subramaniam Pillai (PW-9) was the Panchayat

President who had switched on the street light opposite Rathina

Gounder's house, which had lit up the area when the incident took

place.

Dr. Bhaskaran (PW-3) had examined the deceased and his son

Elumalai for their injuries at Thirukovilur Government Hospital and

issued the injury certificates (Ex. P-2 & P-3). Atul Murari (PW-6),

Associate Professor of Forensic Medicine, Jipmer Hospital, Pondichery,

conducted the post-mortem on the body of the deceased. Both doctors

opined that death occurred on account of the head injury (lacerated

wound of scalp 3cm X 1cm X bone deep over the vault. PW-6 stated

that the corresponding internal injury was separation of coronal suture

extending literally on the right side of temporal region, total length of

the fracture being 13 cm, extra-dual haematoma in the right temporal

region and generalized subsural and subarachnoid haemorrhage. PW-6

has opined that the head injury with corresponding internal injuries

were sufficient in the ordinary course of nature to cause death.

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Sheikh Kani (PW-12) was the Sub-Inspector of Police at

Arakandanallur Police Station who recorded the statement of Elumalai

and registered Crime No. 196 of 1987 and prepared the FIR, sketch of

the place of occurrence (Ex.P16) and drew the Mahazar (Ex. P-13). He

also seized the thorn stick of three feet length used by the appellant

(MO No.1) and collected blood stained soil from the spot (MO. No.3).

He also recorded the statement of Kasiammal and other witnesses. He

stated that he arrested the appellant on 11.6.1986 at 6 A.M. G.

Jagadeesan (PW-13) was the Investigating Officer, who took over the

investigation on 13.6.1987 at 2.00 P.M. PW-7 to 11 were formal

witnesses.

5. The trial court found that the evidence of the four eye-witnesses

(PWs.1, 2, 4 and 5) clearly established that the appellant hit Rathina

Gounder on the head with the thorn stick during his quarrel with

Rathina Gounder. The trial court rejected the case of self-defence put

forth by the appellant for the following reasons :

a) There was no evidence to show that the appellant was injured

during the incident.

b) The appellant did not state in his statement under section 313

IPC, that he hit Rathina Gounder in self defence, to avoid danger

to his life.

c) The appellant did not establish that he gave a complaint to

Arakandanallur Police Station in regard to the attack by Rathina

Gounder and Elumalai, as no such complaint was recorded in the

said Police Station.

The trial court further held that the appellant had acted with the

intention of causing bodily injury to Rathina Gounder and such bodily

injury inflicted by him being sufficient in the ordinary course of nature

to cause death, he was guilty of culpable homicide amounting to

murder under section 300 (Thirdly) of IPC. Consequently, the

appellant was convicted under section 302 IPC. The trial court also

held that the evidence of the four eye witnesses clearly established

that the appellant and his two sons had hit Elumalai (PW-1) and

consequently, convicted them under section 323 IPC.

6. The High Court affirmed the finding that Rathina Gounder died

as a result of the head injury caused by the Appellant, by hitting him

on the head with the thorn stick. It also held that the evidence of

PWs.-1, 2, 4 and 5, that the appellant suddenly picked up the thorn

stick lying nearby during a quarrel and hit the deceased as also the

fact that the appellant did not come to the place of occurrence with

any weapon, established that there was no pre-determined or pre-

meditated plan or intention on the part of the appellant to cause the

death of the deceased or cause any bodily injury as is likely to cause

death; and that the appellant had hit the deceased with the knowledge

that his act of hitting the deceased on his head was likely to cause

death. The High Court was of the view that the thorn stick used (of

about three feet length) was not a dangerous weapon. Consequently,

it held that the appellant had to be convicted under section 304 Part

II, IPC and not section 302 IPC and sentenced him to five years

rigorous imprisonment. It did not disturb the conviction and sentence

under section 323 IPC.

7. The said decision of the High Court is under challenge in this

appeal. The learned counsel for the appellant submitted that the High

Court did not consider the plea of self-defence though specifically

raised. We find that the entire Memorandum of Appeal before the High

Court concentrated and revolved upon the plea of self-defence. The

grounds referred to the evidence of PW 2 Thangaraj and the several

circumstances, which the appellant relied on to make out a case of self

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defence. The High Court ought to have considered the said plea which

goes to the root of the matter.

8. A perusal of the cross-examination of PW-1, PW-2, PW-4 and

PW-5 and the statement under section 313 clearly shows that the

appellant had put forth the following pleas of self-defence : That

Rathina Gounder and his wife and son were jealous of the appellant as

he was maintaining bullocks and cultivating the land; that therefore,

they were trying to obstruct the tethering of his bullocks in the

common yard by putting thorn sticks in that place; that there was no

drain/gutter in the common yard and therefore, the question of

covering any drain by thorn sticks did not arise; that the thorns were

pricking his bullocks and making it difficult for him to tether his cattle;

that whenever he removed the thorns and tethered his cattle, Rathina

Gounder and his son Elumalai were threatening that they will assault

him and kill him; that on the date of incident, Rathina Gounder and his

family had thrown thorny sticks next to the bullocks tethered by the

appellant, the said thorns were pricking the cattle and made it difficult

for the cattle to lie down; that, therefore, he went and removed the

thorn; sticks; that at that time, Elumalai (PW-1) came and held his

neck and Rathina Gounder came and held his hair-locks; that when he

tried to release himself, Rathina Gounder bit him next to the right

thumb and blood started oozing out; that Rathina Gounder and

Elumalai also took a stick each and slashed towards his head; that he

raised his hands to cover his head, and that the blows fell on both his

elbows resulting in lacerated wounds. The appellant also stated that

fearing for his life, he ran away and went to the Arakandanallur Police

Station around 12 O'clock mid night and explained what happened and

showed his wounds. The Sub-Inspector asked him to give a complaint

and he got a complaint written and gave it. The Sub-Inspector took it

and stated that he has to go out; that he came back around 2 A.M. in

the morning; that within a short time, Rathina Gounder, Elumalai,

Kasiammal and some others came to the Police Station and the Sub-

Inspector took some signatures from Elumalai, and thereafter they

went back; that the Sub-Inspector detained him in the police station

for two days and arranged for treatment for the hand wounds through

a Homeopathy Doctor; and that only on Thursday, he sent him to

court. He also stated that he did not hit Rathina Gounder or Elumalai.

9. It is now well settled that the onus is on the accused to establish

that his action was in exercise of the right of private defence. The plea

can be established either by letting in defence evidence or from the

prosecution evidence itself, but cannot be based on speculation or

mere surmises. The accused need not take the plea explicitly. He can

succeed in his plea if he is able to bring out from the evidence of the

prosecution witnesses or other evidence that the apparent criminal act

was committed by him in exercise of his right of private defence. He

should make out circumstances that would have reasonably caused an

apprehension in his mind that he would suffer death or grievous hurt if

he does not exercise his right of private defence. There is a clear

distinction between the nature of burden that is cast on an accused

under section 105 of the Evidence Act (read with section 96 to 106 of

Indian Penal Code) to establish a plea of private defence and the

burden that is cast on the prosecution under section 101 of the

Evidence Act to prove its case. The burden on the accused is not as

onerous as that which lies on the prosecution. While the prosecution is

required to prove its case beyond a reasonable doubt, the accused can

discharge his onus by establishing a preponderance of probability \026 (vide

Partap vs. State of U.P. (1976 (1) SCC 757); Salim Zia vs. State of UP (1979

(2) SCC 648); and Mohinder Pal Jolly vs. State of Punjab (1979 (3) SCC 30).

In Sekar vs. State [2002 (8) SCC 354], this Court observed :

A plea of right of private defence cannot be based on surmises

and speculation. While considering whether the right of private

defence is available to an accused, it is not relevant whether he

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may have a chance to inflict severe and mortal injury on the

aggressor\005. In order to find whether right of private defence is

available or not, the injuries received by the accused, the

imminence of threat to his safety, the injuries caused by the

accused and the circumstances whether the accused had time to

have recourse to public authorities are all relevant factors to be

considered. Whether in a particular set of circumstances, a

person acted in the exercise of the right of private defence, is a

question of fact to be determined on the facts and

circumstances of each case. No test in the abstract for

determining such a question can be laid down. In determining

this question of fact, the Court must consider all the surrounding

circumstances. It is not necessary for the accused to plead

in so many words that he acted in self-defence. If the

circumstances show that the right of private defence was

legitimately exercised, it is open to the Court to consider

such a plea. In a given case, the Court can consider it

even if the accused has not taken it. If the same is

available to be considered from the material on record.

(emphasis supplied).

The above legal position was reiterated in Rizan v. State of

Chhattisgarh [2003 (2) SCC 661]. After an exhaustive reference to

several decisions of this Court, this Court summarized the nature of

plea of private defence required to be put forth and the degree of

proof in support of it, thus :

"Under Section 105 of the Indian Evidence Act, 1872, the

burden of proof is on the accused, who sets off the plea of self-

defence, and, in the absence of proof, it is not possible for the

court to presume the truth of the plea of self-defence. The court

shall presume the absence of such circumstances. It is for the

accused to place necessary material on record either by himself

adducing positive evidence or by eliciting necessary facts from

the witnesses examined for the prosecution. An accused

taking the plea of the right of private defence is not

required to call evidence; he can establish his plea by

reference to circumstances transpiring from the

prosecution evidence itself. The question in such a case

would be a question of assessing the true effect of the

prosecution evidence, and not a question of the accused

discharging any burden. When the right of private defence is

pleaded, the defence must be a reasonable and probable version

satisfying the court that the harm caused by the accused was

necessary for either warding off the attack or for forestalling the

further reasonable apprehension from the side of the accused.

The burden of establishing the plea of self-defence is on the

accused and the burden stands discharged by showing

preponderance of probabilities in favour of that plea on the basis

of the material on record\005\005\005\005. The accused need not prove

the existence of the right of private defence beyond

reasonable doubt. It is enough for him to show as in a

civil case that the preponderance of probabilities is in

favour of his plea."

[Emphasis supplied]

10. We will examine the evidence, keeping in view, the said

principles. Thangaraj (PW-2) is a neighbour and nephew of both the

deceased and the appellant. In his examination-in-chief, he gave

details of the quarrel and altercation between Rathina Gounder and the

appellant in regard to removal of the thorny sticks covering the drain,

and stated that during the quarrel, Krishnan took a thorn stick that

was lying nearby and hit Rathina Gounder on his head; that when the

appellant tried to hit Rathina Gounder the second time, Elumalai tried

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to prevent it and sustained injury to his right hand; and that the

appellant thereafter pushed Rathina Gounder who fell down. In the

cross-examination, he stated that as it was summer, water was not

stagnating in the drain situated in the common yard and there was no

nuisance by pigs; that because of the thorn sticks, the cattle had no

place to rest; that when Rathina Gounder and the appellant were

pushing each other during the quarrel regarding thorn sticks, Rathina

Gounder bit appellant's hand between the right thumb and index

finger; that when Rathina Gounder and Elumalai attempted to hit the

appellant with a thorn stick, the appellant tried to prevent it by

covering his head with his hands and the blows landed on both his

elbows resulting in wounds. He has also stated that he had

accompanied Rathina Gounder and others to Arakandanallur Police

Station at 2 A.M. that then he saw the appellant sitting in the police

station and at that time also he saw the injuries on the hands of the

appellant.

The above evidence clearly and completely corroborates and supports

the case of self-defence put forth by the appellant. What is significant

is that the PW-2 was not subjected to any re-examination on this

aspect nor was he sought to be declared hostile. In fact, the manner in

which he has given evidence in examination-in-chief and in the cross-

examination shows that he was not a partisan witness and was giving

evidence in a natural manner. The said evidence of Thangaraj (PW-2),

which fully supports the case of self-defence put forth by the

appellant, has not been considered by the trial court and completely

ignored by the High Court.

11. We may also refer to the evidence of the other eye-witnesses in

this behalf. Elumalai (PW-1) has of course denied the suggestions that

the deceased bit the right hand of the appellant, and that he and the

deceased had hit the appellant and the blows had landed on

Appellant's elbows when he raised his hands to cover his head. When

he was asked whether he noticed the blood on the hands of appellant,

he stated that he did not "notice" it. He admitted the differences and

quarrels between his family and the appellant in regard to tethering of

cattle by the appellant and keeping thorny sticks in the common yard.

Pitchaimuthu (PW-4) in his cross-examination has stated that he did

not notice whether Rathina Gounder and the appellant were pushing

each other but he noticed Rathina Gounder repeatedly putting the

thorn sticks and the Appellant repeatedly removing them; that there

was no stagnant water in the drain, over which the thorn sticks were

being placed; and that both Rathina Gounder and the appellant,

quarrelling and pushing each other came from the drain area to the

road. He states that he did not see the deceased and Elumalai hitting

the appellant and that he did not know whether the appellant received

injuries to his hands and whether the blood was oozing from the

wounds. It is evident that PW-4 was not a witness to the entire

incident and that he saw only a part of it. Kasiammal (PW-5), in her

cross-examination admitted that there were altercations on account of

tethering of cattle and removing of thorny sticks; that between 8 & 9

P.M. on the day of the incident, both Rathina Gounder and the

appellant were respectively putting and removing the thorn sticks

repeatedly, and that when the appellant hit her husband with the

thorn stick, her husband did not fall down. She, of course, denied that

Rathina Gounder bit the appellant in his hand and also denied that

Rathina Gounder and Elumalai hit the appellant with sticks.

12. Out of the four eye-witnesses, two (PWs.1 and 5) are the son

and widow of the deceased. The evidence of these two witnesses

establishes that there was enmity and an ongoing dispute in regard to

the use of the common yard; That on the day of the incident, the

entire quarrel arose because PW-5 initially placed the thorn sticks over

the area where the appellant was tethering his cattle, and the

deceased and PW 1 prevented the appellant when he tried to remove

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them; and that as a consequence there was an altercation between

the deceased and the appellant when the deceased repeatedly placed

the thorny sticks and the appellant repeatedly removed them. In fact

the evidence of the two independent eye-witnesses- PW-2 and PW 4,

clearly show that there was no stagnant water in the drain and

therefore, there was no need to place any thorn sticks over that area.

It is clear that the deceased, PW-1 and PW-5 were bent upon

preventing the appellant from tethering his cattle in the common yard.

In view of the admitted discord and disputes between the family of the

deceased and the appellant, and being acting participants in the

dispute which led to the incident, it is but natural that these two

witnesses will highlight only the acts of the appellant and not the acts

of the deceased and PW-1.

13. In regard to the evidence of PW-4, Pitchaimuthu, we find that he

saw the incident from a distance. He came out of his house only after

the altercation/quarrel had gone on for some time and, therefore, had

seen only a part of the incident. He admits that the altercation centred

around the appellant asking why the thorn sticks were put at the place

where he was tethering his cattle, and the deceased asking why

appellant was removing the thorny sticks. He also admits that when he

first saw the incident, both were holding the thorny sticks and pulling

each other. He also admits that the deceased was repeatedly placing

the thorny sticks and the appellant was repeatedly removing them. He

also admits that both the deceased and the appellant quarreling and

pushing each other, came from the drain area to the road. Therefore,

the evidence of PW-2 Thangaraj becomes crucial. He had seen the

incident from the beginning and has narrated what had happened. He

has clearly admitted that when the deceased and the appellant were

quarreling and pulling each other, Rathina Gounder bit the appellant in

his hand between the right hand thumb and the index finger, and that

both the deceased and his son Elumalai attacked the appellant with

sticks and to protect his head, the appellant raised his hands and got

injured in the elbow. It becomes obvious that apprehending grievous

hurt, he took the thorn stick lying near by and hit the deceased to

protect himself. The appellant was neither armed with any weapon

when he came to the spot nor bring any thing from his house after the

quarrel started. He just picked up the thorn stick which was lying at

the spot. This clearly probabilises a case of self-defence.

14. Another significant aspect to be noticed is that both Thangaraj

(PW-2) and Pitchaimuthu (PW-4) admit that there was no stagnant

water in the drain situated in the common yard. We have referred to

this fact earlier also. Therefore, the case of the prosecution that the

pigs were coming and causing nuisance in the stagnant water in the

drain and therefore, thorn sticks were placed by the family of the

deceased to cover the drain, is proved to be false. It became clear that

the deceased and his wife and son were putting thorny sticks to

prevent the appellant from tethering his cattle and they started the

discord.

15. The trial court considered the plea of self-defence but rejected it

on the ground that the appellant did not state in his statement under

section 313 Cr.P.C. that he had hit Rathina Gounder in self-defence.

Obviously, an accused cannot be expected to admit that he had

inflicted the blow that killed the deceased. Where the plea of the

accused, when read with the evidence of the eye witnesses, brings out

a set of facts and circumstances showing that the accused acted in

exercise of the right of private defence, the fact that the accused in his

313 statement only referred to the acts of the deceased and his son

hitting him and did not admit that he hit back the deceased, is not a

ground to reject the plea of private defence. The approach of the trial

court to the plea of private defence was erroneous. The High Court did

not go into this aspect at all.

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16. It is true that the appellant has not examined the Doctor who

treated his injuries on his elbows. There is also no FIR in regard to

appellant's version of the incident. There is nothing to show that the

Jail Doctor recorded the injuries. These factors would normally militate

against acceptance of a plea of self defence. But the clean and

uncontroverted evidence of PW-2 and the plausible explanation by the

accused in his statement under Section 313 tilt the balance. The court

must be objective and examine the matter on the facts and

circumstances of each case to find out whether the situation was such

as was likely to reasonably cause apprehension in the mind of the

accused that death or grievous hurt would be caused to him if he did

not act in self defence. Hs action in hitting the deceased on his head

by taking a stick lying on the ground, was a reflex action to save

himself from the attack by the deceased and his son. The appellant

had not gone to the spot with any weapon. There was a lengthy

quarrel and scuffle between the deceased and the appellant. The

deceased and his wife and son were the root-cause for the quarrel as

they put thorny sticks at the place where appellant was tethering his

cattle. The evidence probabilises the defence version that the

deceased and his son had hit the appellant with sticks on his head and

the blows landed on his elbows when he raised his hands to protect his

head, and that at that stage, the appellant picked up one of the thorny

sticks which were lying at the spot and hit the deceased, to protect

himself and not with the intention of killing him. The deceased died

two days later on account of the resultant injury. The accused has also

stated that he was detained in the police station on the night of 9th ,

but was shown to have been arrested only on 11th. It is not necessary

to go into this aspect, as the preponderance of probabilities show that

the act of the appellant was in all probability, in exercise of his right of

private defence.

17. For the foregoing reasons, we allow this appeal, set aside the

conviction under sections 302 and 323 and acquit the appellant of the

charges. His bail-bonds shall stand discharged.