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CASE NO.:

Appeal (crl.) 1236-1237 1998

PETITIONER:

MURALI

Vs.

RESPONDENT:

STATE OF TAMILNADU

DATE OF JUDGMENT: 14/11/2000

BENCH:

U.C.Banerjee, K.G.Balakrishnan

JUDGMENT:

The accused is in appeal against the conviction and

sentence imposed by the High Court in affirmation of the

finding of guilt under Section 304 Part-I, IPC and

sentencing him to suffer rigorous imprisonment for five

years. During the course of hearing learned Advocate

appearing for the respondent-State, contended that the

appeal should be restricted to the question of sentence

only: The learned Advocate appearing for the appellant

however, contended that question of treating the appeal in

any restricted manner does not and cannot arise by reason of

subsequent grant of leave without attaching any condition

thereto. The records depict that on 20th March, 1998, this

Court directed issuance of notice limited to the question of

sentence only. Subsequently, however, after about eight

months, the matter was placed in the list for hearing but by

reason of the objection this Court was pleased to grant

special leave in the matter. The learned Advocate appearing

in support of the appeals contended that once the leave has

been granted the matter is open for all the issues to be

agitated otherwise the Court would have specified in the

order itself while granting leave. Reliance however has

been placed on the decision of this Court in the case of

Harbans Singh v. State of Punjab [Criminal Appeal No.659 of

2000] which inter alia is an authority for the proposition

that the Leave, as granted by this Court, is to be treated

limited to the question of sentence only and as such the

appeals were directed to be heard on the question of

sentence only. The case of the prosecution as the record

depicts appears that the deceased Vinayagam purchased 2/3rd

share in the Well as well as the pump- set belonging to the

Pankal (the accused). On the date of occurrence that is on

5th March, 1990 at about 6.15 p.m. the deceased was in his

Tea shop, the accused went there and according to the

prosecution stabbed on the stomach of the deceased. When PW

1 Gopal intervened, the latter also suffered injuries. The

prosecution case further goes on to record that the accused

dragged the deceased inside the room in the business place

and bolted the door from inside and thereafter assaulted on

the head of the deceased with iron pipe and stabbed him

indiscriminately with a knife and caused his death. Though,

strictly speaking, there cannot be eye-witnesses since the

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fatal blow was given admittedly inside the bolted room but

prosecution examined PWs.1,2 and 3 as eye-witnesses to the

occurrence though were present outside the room. The

prosecution case however, further depicts that the door was

opened after some time by the accused and he came out of the

room with a blood-stained knife in his hand and the accused

made his escape inspite of resistance. It is only

thereafter that the body of the deceased was discovered in

the room. The full factual analysis has been dealt with by

the trial judge as also the High Court and as such we need

not deal with the same in extenso, more so by reason of the

fact that the appeals are heard on the question of sentence

only. Significantly one aspect of the matter which stands

high-lighted by the learned Advocate appearing for the

respondent- State is that circumstantial evidence as a

matter of fact clinches the issue since there is existing a

categorical statement from PW 2 that the accused opened the

door and came out of the room and was holding Vinayagam with

left hand and holding the knife in his right hand. It is at

that juncture that PW2 Sundaram took two tender coconut

which lay there and threw them at the accused, the accused

however moved aside and escaped. More or less identical is

the deposition of PW3 without any element of contradiction.

It is on this piece of evidence that the learned

State-Advocate contended that no exception can be taken to

the finding and the sentence passed by the Sessions judge or

the High Court. As a matter of fact, the Learned Additional

Sessions Judge has been quite lenient while dealing with the

matter and has changed the conviction from Section 302 IPC

to Section 304 Part I, IPC and recorded a punishment of five

years rigorous imprisonment. The High Court however having

come to the finding that there is available clinching

evidence to come to the conclusion that the appellant has

committed the offence together with an observation that the

Learned Judge has not properly appreciated the evidence, but

since the prosecution has chosen not to file any appeal

against the order of the Sessions Judge, the matter rested

there. The learned Advocate appearing for the

accused-appellant, however, very strongly contended that the

right of private defence ought not to be taken away from the

appellant-accused and both the courts fell into error in not

considering the right of defence available to an accused.

It has been contended that the injuries on the body of the

accused are all serious in nature and hence the accused was

entitled to a clear acquittal. In support of his contention

four several decisions have been cited and the first in the

line is the decision of this Court reported in the case of

Dev Narain v. The State of U.P. [1973 (1) SCC 347]. We

need not delve in to the details of the decision having

regard to the point in issue before the Court. The

contextual facts are totally different and the decision does

not have any manner of application and as such we do not

feel it expedient to dilate on that score any further. The

second is a decision of this Court in the case of Wassan

Singh v. State of Punjab [1996 (1) SCC 458] wherein this

Court in paragraph 10 of the report, upon reliance on two

earlier decisions Mohd. Ramzani v. State of Delhi [1980

Supp. SCC 215] and Deo Narain v. State of U.P. [1973 (1)

SCC 347] has been pleased to observe that while judging the

nature of apprehension which an accused can reasonably

entertain in such circumstances requiring him to act on the

spur of the moment when he finds himself assaulted, by

number of persons, it is difficult to judge the action of

the accused from the cool atmosphere of the Court room. It

is on this contextual sphere that this Court held that the

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appellant had a right of private defence of body which

extended even to causing the death and in exercise of that

right if he fired one gunshot which unfortunately killed an

innocent person, it cannot be said that he was guilty of an

offence even under Section 304 Part-I, IPC on the ground

that he had exceeded his right of private defence. The

factual situation here is different, as such no reliance can

be placed thereon also. The third in the line is the

decision of this Court in Chanan Singh v. State of Punjab

[1979 (4) SCC 399] wherein this Court was pleased to observe

as follows: In short the High Court has clearly found that

the prosecution has not presented the true version of the

occurrence and it is not possible for the Court to find how

the occurrence originated and who was the aggressor.

Admittedly, two persons on the side of the prosecution,

namely, Gulzar Singh and Gurnam Singh had suffered one

grievous injury each, similarly five persons on the side of

the accused were also injured and two of them had grievous

injuries. The High Court also found that it was not a case

of free fight. In these circumstances, therefore, it is

difficult to hold that the appellant fired a shot from his

gun merely to assault Gulzar Singh and not in self-defence

particularly when the appellant himself had many injuries,

one of which was grievous. It is true that the defence case

also has not been accepted by the High Court but once there

is a probability of the accused having acted in elf-defence,

that is sufficient to entitle him to an acquittal. Mr.

Singh tried his best to take us through the findings of the

Sessions Judge in order to satisfy us that it was a case of

a free fight and, therefore, the appellant could be

convicted for individual assault. The High Court, however,

has given cogent reasons for disagreeing with the view of

the Sessions Judge. Moreover, as many as five accused

persons were acquitted on the reasonings given by the High

Court and the State did not chose to prefer any appeal

against the judgment in this Court. The High Court having

rejected the fundamental details of the prosecution version

and having held that the true version of the occurrence was

not presented by the prosecution, erred in upholding the

conviction of the appellant for an individual assault by

reconstructing a new case. In these circumstances, we are

satisfied that the prosecution has not been able to prove

its case against the appellant beyond reasonable doubt. The

appeal is accordingly allowed. The conviction and sentence

passed on the appellant are set aside and he is acquitted of

the charges framed against him.

A perusal of the facts, as appears from the decision

makes it clear the circumstances under which the right of

private defence is to be made applicable, unfortunately the

same is not available on the contextual facts. The accused

was found present at the Tea Stall being deceaseds place of

business and as such can be termed to be an aggressor and as

such question of there being any right of private defence

does not arise. The definite evidence in the matter is that

the accused opened the door with a blood stained knife. The

nature of his injuries are not, however, sufficient by

itself to sustain the plea of private defence. As a matter

of fact both, learned Sessions Judge and the High Court have

negatived such a plea and we do record our concurrence

therewith. The injuries on the accused are rather minor in

nature since they were restricted to tender defusion and

abrasion. There is no wound, much less any serious injury

which may even prompt a person to take the most heinous step

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of committing the murder. Reliance was also placed on the

decision in the case of Vijayan alias Vijayakumar v. State

(represented by Inspector of Police) [1999 (4) SCC 36]

wherein this Court on the facts of the matter in issue and

evidence on record was inclined to give judicial imprimatur

to the plea of right of private defence advanced by the

appellant and held him not guilty and granted pardon. Right

of private defence undoubtedly, a defence available to an

accused but the Court while dealing with the defence, ought

to act with proper circumspection and caution, since the

same is an exception rather than a rule. At the cost of

repetition, we do feel it inclined to state that none of the

decisions noticed above do not in any way render any

assistance to the learned Advocate appearing in support of

the appeals. On the wake of the aforesaid, we do not find

any merit in these appeals. The appeals, therefore, fail

and are dismissed.