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PETITIONER: VIJAYAN @ VIJAYAKUMAR

       Vs.

RESPONDENT: STATE REP.BY INSPECTOR OF POLICE

DATE OF JUDGMENT:       22/03/2000

BENCH: D.P.Mohapatra, K.T.Thomas

JUDGMENT:

     Thomas J.

     Out  of six persons arraigned before a Sessions  Court for the murder of one Natarajan, one alone was convicted and the rest were acquitted.  The High Court of Madras confirmed the  conviction  and sentence (imprisonment for life).   His plea  of right of private defence was denounced by the trial court  as  well as the High Court.  The said  sole  convict, Vijayan, is the appellant before us.

     The  5th of October, 1984 was an eventful day for  the rival  factions  one of which the appellant belongs  to.   A series  of events took place on that day which ended up with the  death  of Natarajan at about 2.30 pm.  It gave rise  to the present case.

     Prosecution  and  the  defence   were  in  substantial agreement  regarding  the narrative of the events  till  the penultimate  stage.   But  they differed grossly  with  each other  regarding  the final stage in which fatal injury  was inflicted  on  the deceased to which he succumbed in  a  few minutes.

     The  following  part  of the story is, by  and  large, undisputed.   Natarajan and his brother PW1-Kandaswamy  were residents  of a place called Edayankattuvalasu in Erode town (Tamil  Nadu).   Their neighbour was Periyanna.  He and  his children  were  residing  in   adjacent  houses.   Appellant Vijayan  is one of the sons of Pariyanna.  All the houses of the  above  persons  were  on the southern side  of  a  road (Nasianur road) at Erode town.

     PW1-  Kandaswamy  and  deceased Natarajan  laid  stone slabs over a drainage which passed through a private passage leading to the houses of all the above persons.  Those stone slabs  caused stagnation of water during rainy season and it affected  Periyannas  building.  So his sons requested  the other  party  to remove the stone slabs.  But none  of  such requests was heeded to.

     On  the morning of 5.10.1984 appellant-Vijayan and his brothers  forcibly removed those stone slabs.  On coming  to know  of it PW1-Kandaswamy along with his brother  Natarajan

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and  father  Kuppuswamy went to the house of  Periyanna  and questioned their act.  It led to an altercation during which one  belonging  to the appellants faction slapped twice  on the  cheek of Kuppuswamy the father of PW1 and deceased.  As some  neighbours intervened then PW1-Kandaswamy and deceased went  back  to  their  house  with  Kuppuswamy.   All  those incidents happened before noon hours.

     The  above  events are not in dispute, but as to  what happened  thereafter  we  have before us  two  diametrically divergent  versions.   According  to  the  prosecution,  the following incidents happened thereafter:

     At  about  2.30 pm the deceased Natarajan was  walking along  Nasianur  road towards east.  He was followed by  PW1 Kandaswamy,   who   was  followed   by   his   father-in-law PW2-Chenniappan.   As  the  deceased  passed  the  house  of Periyanna  six  assailants emerged out of that  house  armed with  knives, spear and sickles etc.  Sensing danger at  the sight   of  the  onrushing   assailants  Natarajan  made   a right-about-turn   and  scampered  towards   west  but   the assailants  chased  him and intercepted him and  pushed  him down.   After he fell he was stabbed by the appellant with a knife  on the back and also on the front chest.  Appellant’s brother  Thilakan (second accused in the case) aimed a  blow with  a spear on Natarajan but it missed the target and fell on  the  crown  of  appellants head  who  also  fell  down. Deceased  Natarajan who sustained a stab injury on the chest died at the spot.

     The  rival version, presented by the appellant, is the following:   At  about  2.30 pm deceased Natarajan  and  his brother PW1- Kandaswamy accompanied by a gang of others went to  the  house of Periyanna in retaliation for the  forenoon incident.   At the front portion of the house they  attacked the  appellant  which was resisted, but still the  appellant sustained  injuries.  It was then that appellant and  others acted in self-defence.

     In support of the prosecution version PW1(Kandaswamy), PW2  (Chenniappan) father-in-law of PW1 and PW3  (Poosappan) were  examined.  They supported the case of the  prosecution which  they  described  in the same manner as  it  has  been narrated  above.   Trial court and the High  Court  accepted their evidence and found the prosecution story to be true.

     Post-mortem   certificate   issued    by   PW6    (Dr. S.Velmurugan) showed that the deceased had two injuries, one of  which  was a stab wound on the left chest which  pierced the  upper  lobe of left lung and the left pulmonary  artery was  completely  cut.  The other injury was a stab wound  on the left chest, but its depth was only 1 cm.  The doctor has rightly  opined that the first injury was necessarily  fatal and  the  injured  could not have survived for more  than  a couple of minutes thereafter.

     PW6  -  Dr.S.Velmurugan, a Civil Assistant Surgeon  of Government  Hospital,  Erode,  had  deposed  that  appellant Vijayan met him at 3 pm on 5.10.1984 with a lacerated injury (2  x ½ x ½) over the mid parietal region of the scalp, and some  abrasions over the right knee, right index finger  and on the dorsum of the foot.

     The  details of those injuries were written in Ex.P5 Accident  Register.   But the more important aspect  of  the

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evidence  of  PW6-doctor is this:  Appellant told  him  then that  he  received  those injuries at 2.45 pm  at  his  own residence  when three assailants assaulted him with pitchuva and a screw driver.

     On  the defence side one Dr.  Muruges (Radiologist  in the  Government Hospital), Erode) was examined as DW1.   But his  evidence  is not of much use because he said  that  the X-Ray  did  not reveal any fracture for the appellant.   Two more witnesses were examined for the defence, one among them was  a lady (DW2-Devaki) who said that she and PW3-Poosappan were  at Salem on 5.10.1984 afternoon for execution of  some documents  in  connection  with a  lorry  transaction.   She proved  Ex.D2, a sale receipt bearing the signature of  PW3- Poosappan dated 5.10.1984.

     In  fact, when PW3-Poosappan was examined he was asked about the said lorry transaction.  Though he admitted having sold  the  lorry mentioned in that receipt to DW2-Devaki  he denied  having  gone  to Salem on 5.10.1984 for  that  lorry deal.

     If PW3-Poosappan was present at Salem at 4.00 pm there is  no doubt that he could not have been present at Erode at 2.30  pm.  The trial court and the High Court did not  place reliance  on  Ex.D2-  receipt nor on the testimony  of  DW2- Devaki.   Regarding  that evidence High Court  has  observed that  it is also likely that the signature of PW3-Poosappan was  obtained in Ex.D2 much earlier with blank date and  the document  was  got up on that occasion. The reason  for  so holding is that PW3-Poosappan was recorded as present at the scene   of  occurrence  when  the   inquest  was   held   by PW16-Investigating  Officer (The Inquest Report says that it was prepared between 5.00 pm and 8.00 pm on 5.10.1984).

     The  above  reasoning of the High Court  was  strongly assailed  by  Shri N.Natarajan, learned Senior  Counsel  who argued for the appellant which he dubbed as putting the cart before  the  horse  because  the very  object  of  examining DW2-Devaki was to show that PW3-Poosappan was not present at the  scene of occurrence.  It is contended that if it  could be inferred that PW3 would not have been present at Salem on the  premise  that  he was shown in the  Inquest  Report  as present  during  the inquest, it could as well  be  inferred from  Ex.D2 receipt that PW3 would not have been present  at the  scene  of  occurrence during the time of  execution  of Ex.D2.   Inference,  if could be made this way, it could  be the other way around as well, contended the learned counsel.

     For  considering  the evidence of DW2-Devaki, we  have first  to address ourselves whether such an item of evidence is legally admissible.

     Section  153  of  the  Evidence   Act  is  titled   as Exclusion  of  evidence to contradict answers to  questions testing veracity. The main body of the Section reads thus:

     When  a  witness has been asked and has answered  any question  which is relevant to the inquiry only in so far as it  tends to shake his credit by injuring his character,  no evidence  shall  be  given to contradict him;   but,  if  he answers  falsely,  he may afterwards be charged with  giving false evidence.

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     Section  153  is  based on the  decision  rendered  by Pollock CB in Attorney General v.  Hitchock (1847 (1) Ex.91) in  which the learned Judge observed that a witness may  be contradicted  as to anything he denies having said  provided it  be connected with the issue as a matter capable of being distinctly given in evidence, or it must be so far connected with it as to be a matter which, if answered in a particular way, would contradict a part of the witnesss testimony, and if  it  is  neither the one nor the other of  these,  it  is collateral  to though in some sense it may be considered  as connected  with, the subject of enquiry. The rule  limiting the  right  to  call  evidence to contradict  a  witness  on collateral  issues excludes all evidence of facts which  are incapable  of  affording  any   reasonable  presumption   or inference as to the principal matter in dispute.

     But the above rule of prohibition has exceptions which can  be  discerned from the Section itself.  Among the  four illustrations   enumerated  in  the   Section  one  of  them (illustration  C)  is  relevant in this context  which  is extracted  below:  A affirms that on a certain day he saw B at  Lahore.   A is asked whether he himself was not on  that day at Calcutta.  He denies it.  Evidence is offered to show that  A  was  on  that day at  Calcutta.   The  evidence  is admissible,  not as contradicting A on a fact which  affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore.

     Thus  when  the  issue is  whether  PW3-Poosappan  was present  at the scene of occurrence evidence can be  offered to  show that at the very time he was at a different  place. Evidence  of that type is not aimed at shaking the credit of the  witness  by  injuring his character.   It  affects  the veracity of the testimony irrespective of his character.

     Looking  at the evidence of DW2-Devaki from the  above perspective,  it is admissble in evidence and hence the next question  is whether it is a reliable item of evidence.  The High  Court  felt that it is not reliable mainly because  of the  fact  that PW3-Poosappan is recorded as present at  the inquest which is shown to have been held at 5.00 pm.

     Learned counsel for the appellant highlighted the fact that the name of PW3-Poosappan was not mentioned anywhere in the  First  Information Statement lodged by  PW1-Kandaswamy. According to the learned counsel PW3 was a later addition to the  case.  The FIR reached the magistrate concerned on  the same  night at 9.00 pm.  But the Inquest Report was not sent along  with it, perhaps it was not then ready for  despatch. But  it  was sent to the magistrate on the next day at  9.00 pm.   Why it was sent to the magistrate at such an odd time? That  document  is  not  like the  FIR  about  which  utmost promptitude  is a requirement of law for despatching to  the magistrate.   Learned counsel contended that despatching the Inquest  Report to the magistrate on the next day at 9.00 pm would, in the circumstances, only lead to the inference that it  would  not  have  come into existence on  the  night  of 5.10.1984.

     Whether the said contention can be accepted as correct or  not,  we are of the view that authenticity of  D2-  sale receipt  should  not  stand  solely   on  the  premise  that PW3-Poosappan was noted as present in the Inquest Report.

     In  this  context  a  vital  circumstance,  which  the

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accused  has  brought  on  record, has to  be  adverted  to. DW3-photographer  said that he was engaged by someone in the house of Periyanna to take photographs of the inside of that house.   On  5.10.1984 at 5.00 pm he took  such  photographs from  different  angles.   Ex.  D3 and D4 series  are  those photographs.   He  said in evidence that he then  saw  blood stains  in the front portion of the house and in the portico also.   Ex.D5-Cash  Bill dated 5.10.1984 marked through  him shows the amount collected by the witness for the work done. The  Public  Prosecutor  who   cross-examined  the   witness suggested  to him that what he saw on the floor of the house was  not  blood marks but it could have been  some  chemical substance.   The  said  suggestion indicates that  even  the Public  Prosecutor  did  not  dispute   the  fact  that  the photographer  had  taken the photos on 5.10.1984.   However, the  suggestion  that  what he saw was  only  some  chemical element seems to be too baseless for countenance.

     While  considering  the  right   of  private   defence advanced by the appellant, the defence version that deceased and  his  party had tress-passed into Periyannas house  and made  a retaliatory attack for the forenoon incident has  to be  looked  at.  That version of the appellant had  come  on official  record at 3.00 pm when appellant told like that to PW6-Doctor.   We do not think that appellant would have  had sufficient  time to concoct a false story to tell the doctor so soon after the incident.

     When  the Investigating Officer came to know of such a version  of  the appellant one would expect him to check  up the  house  of Periyanna to see whether the said version  of the  appellant  was  true.   But PW16 did  not  produce  any document  whatsoever to convince the Court that he did  make such  examination of the place of occurrence as mentioned by the  appellant  at the earliest.  Though  PW16-Investigating Officer  made a bid to say that he inspected the house while conducting  a  search  on  the same  evening  it  cannot  be believed for a moment because no search memorandum was made, no  search-list was drawn up and no witness was collected to be  present  then.   It  is only the ipsi dixit  of  PW16 Investigating  officer unsupported by even a scrap of  paper that he inspected the house of the accused.

     That  apart,  the injuries sustained by the  appellant (extracted  supra)  were  sought  to  be  explained  by  the prosecution  in a very clumsy manner (in the FIR there is no reference  to the fact that the appellant sustained any such injury  during the incident).  While giving evidence in  the Court PW1 and other prosecution witnesses for the occurrence said  that  appellant sustained those injuries  when  second accused  Thilakan  aimed  to inflict a stab  injury  on  the fallen  deceased but it miss-struck on the crown of the head of  appellant.   Even assuming that second accused  Thilakan would  have  been a bad striker it is difficult to  conceive that  such an aim fumbling whacking would have landed on the crown of another mans head.

     A  poignant  circumstance, which it is  impossible  to ignore,  is  the  normal  human reaction  for  the  forenoon incident.   If  father  of  the deceased  was  slapped  then craving  for  vengeance  would definitely have been  on  the injured   party   of  the   forenoon  episode.   When   that circumstance   is   taken  along   with  the   other   broad circumstances  adverted to above, the case of appellant that deceased   and   PW1  together   with  their  henchmen   had

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tresspassed   into  the  house  of   the  appellant  for   a retaliatory  onslaught,  appears  to be  a  probable  story. Hence,  we are disposed to believe the defence version  that deceased was the aggressor.

     Though a contention has been advanced on behalf of the respondent  that  even  in such a  situation  appellant  had exceeded  his  right  of  private  defence,  we  reject  the contention  because in the broad spectrum of the case it  is not  possible to precisely measure the frontier up to  which the right of private defence could have been stretched.

     We   are,  therefore,  inclined   to   give   judicial imprimatur  to the plea of right of private defence advanced by  the appellant and hold him not guilty of the offence  of murder.   In  the result we allow this appeal and set  aside the  conviction  and  sentence passed on the  appellant  and acquit him.  The bail-bond will stand cancelled.