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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.