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CASE NO.: Appeal (crl.)  1533 of 2004

PETITIONER: Ashok Kumar & Ors.

RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 05/05/2006

BENCH: S.B. SINHA & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T WITH CRIMINAL APPEAL NO. 1174 OF 2005 Selvakumar                                                              \005. Appellant Vs. State of Tamil Nadu & Ors.                                      \005. Respondents  

S.B. SINHA, J. :

The appellants herein, namely, Ashok Kumar, Sankar and Babu (in  Criminal Appeal No. 1533 of 2004) and Selvakumar (in Criminal Appeal  No. 1174 of 2005) (A-1, A-3, A-4 and A-2 respectively) along with their  father Chakravarti Nayinar (A-5), mother Gunasekariammal (A-7) and uncle  Rajan (A-6) stood trial for commission of offences under Sections 147, 148,  341, 447, 302 read with Section 109 read with Section 149 of the Indian  Penal Code (IPC), inter alia, for causing death of one Kumararaja. The  accused  as  also the deceased Kumararaja were residents of  Ammeri Village, Taluk Gingee.  They had their agricultural lands in the said  village.  The accused were claiming share of the land belonging to said  Kumararaja. They had allegedly been causing disturbances in the possession  of the lands belonging to Kumararaja as a result whereof some criminal  cases were pending against A-5 and A-6. A-5 and A-6 with a view to attend  the said criminal cases left the village at about 6.00 a.m. on 29.10.1993.   They had allegedly instructed the appellants before leaving the village to see  that the deceased did not plough the land in question and if despite warning  he would do so he should be killed.  At about 8.30 a.m., the deceased  Kumararaja went to the said land and began ploughing the same which was  objected to by the appellants herein.   He reported the matter to Elanchziyan  (PW-1) and Devabalan (PW-2) who advised him to convene a Panchayat so  that the dispute between the parties may be settled, in response whereto the  deceased allegedly told them that the matter need not be referred to  Panchayat as the land belonged to him.   He had, therefore, requested both  the said PWs to accompany him to the land in question and ask the  appellants not to cause any obstruction  in his ploughing the land.  They  complied with the said request of the deceased.  Further case of the  prosecution is that as soon as the deceased entered into the disputed land and  tried to plough, Gunasekariammal (A-7) allegedly brought four Koduval  knives and handed over each one of them to the appellants and instigated  them to kill the deceased whereupon they attacked the deceased.  The  deceased fell down.  PW-1 and PW-2  cried out seeing the incident  whereupon they were also threatened.   Thereafter, they ran away with the  weapons.  PW-1 and PW-2 came near the deceased and found Kumararaja  dead.  The village came within the jurisdiction of Valathi Police Station.  It  was situated at a distance of about 8 kms. from the village.  PW-1 walked all  the way to the Police Station.  He reached the police station at about 11.30  a.m.  At that time, Head Constable Ansar Sherif (PW-10) was present.  He  was although attached to Gingee Police Station, at the relevant point of time

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having been instructed by Inspector Mohan Doss Michael (PW-11), he was  performing his duties at the Valathi Police Station.    Head Constable  (PW- 10) recorded the statement of PW-1.  A copy of the First Information Report  was sent to the Inspector (PW-11) who came to the scene of occurrence at  about 12.30 p.m.  In the meantime, PW-1 and PW-2 had also reached the  place of occurrence.  The statements  of  PW-1,  PW-2  as  also of  those  who were witnesses to Mahazar were recorded.  Post-mortem examination  on the dead body was conducted by Dr. Marimuthu (PW-9) on 30.10.1993.   The following injuries were found on the dead body of the deceased: (1)     Incised wound (cut wound) across the top of the head, 15’x4’.0 in  deep in brain, brain incised to about 1 cm depth, subdural haematoma  about 100 cc on the left parietal area. (2)     Oblique incised wound in the midline of the head 8’ x 2’ on brain  deep. (3)     Oblique incised wound on the right side parental area 17’ x 2’ x 1-1/2’  cm. (4)     Antere posterior incised wound on the left side involving 7x2x1 cm. (5)     Antere posterior incised would on the right side frontal area, 4x1x1  cm. (6)     Cut injury with clear margin on the left hand running through distal  ends of the 2,3,4 & 5th bones removing (amputating) 2, 3, 4 & 5th  bone.  Skin is attached to main part of the hand. (7)     Horizontal abrasion on the left shoulder 15x1 cm. (8)     Abrasion on the left side neck 4x1 cm. (9)     Abrasion on the back of right forearm 2x1 cm.

According to the doctor (PW-9), the injuries were ante-mortem in nature and  were possible to have been caused by a sharp-edged knife or Koduval knife.    Upon completion of the investigation, a charge sheet was filed against all the  accused. Before the learned Sessions Judge, inter alia, a plea was taken that  another First Information Report had been lodged in regard whereto an entry  had been made in the General Diary.  However, the same had not been  produced.  The learned Sessions Judge upon consideration of the evidences  brought on record including those of the eye-witnesses, namely, PW-1 and  PW-2 found the prosecution case to have been proved beyond all reasonable  doubt and recorded a judgment of conviction against all the accused persons.   On an appeal being preferred before the High Court,   the High Court did not  believe that  part of the prosecution case involving A-5 and A-6 who  admittedly had left the village at 6.00 a.m. on 29.10.1993 as also that of A-7  who allegedly had come to the scene and distributed the weapons to the  appellants herein.  They were, therefore, acquitted.  During the pendency of  the appeal before the High Court, A-6 expired and  his appeal thus was held  to have abated.   The appeal filed by the appellants herein before the High  Court, however, was dismissed. Mr. V Krishnamurthy, the learned counsel appearing on behalf of the  appellants, in support of the appeals, inter alia, submitted that keeping in  view the genesis of the occurrence it was obligatory on the part of the  prosecution to prove that the land in question belonged to the deceased.   Drawing our attention to the statements made by the Investigating Officer,  the learned counsel would submit that admittedly no witness was examined  to establish the ownership and possession of the deceased over the land in  question and the prosecution cannot be said to have proved its case.  It was  further submitted that the General Diary having not been produced, which  was called for by the appellants with a view to show that another Report had  also been lodged prior to the lodging of the First Information Report by PW- 1 and the same having not been produced by the prosecution, an adverse  inference ought to have been drawn by the learned courts below.  Mr.  Krishnamurthy urged that the prosecution has further not been able to prove  that the Head Constable PW-10 who was admittedly attached to the Gingee  Police Station, was at the relevant point of time asked by the Inspector PW- 11 to perform his duties at Valathi Police Station.   It was furthermore  contended that the High Court  committed a serious error in placing reliance  upon the evidence of PW-1 on the premise that he was a disinterested

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witness and had nothing to do with the dispute between the parties although  it had been brought on record that the younger sister of the deceased was  married to his sister’s son.   The learned counsel urged that  in a case of this  nature where the title of the land was disputed, the learned courts below  should have considered the question as to whether in a situation of this  nature the appellants could have exercised their right of private defence in  regard to the property. It is not in dispute that both the parties were related to each other, the  deceased being a co-parcener of the appellants.  It is furthermore not in  dispute that the parties had been disputing over the ownership of the land.   The appellants had been disputing the absolute ownership of the deceased in  regard to the land in question on the ground that they were also co-owners  thereof.  PW-1 was, thus, related to both the parties.  Nothing has been  brought on record to show that he had anything to do with the land in  question  and for one reason or the other he would side with the deceased.     It has also not been established that PW-1 was otherwise inimically disposed  toward the accused.  Both PW-1 and PW-2 made categorical statements to  the effect that they had gone to the scene of occurrence with a view to  prevent the appellants from causing obstructions to the ploughing of land by  the deceased.  They were requested to do so by the deceased.  In fact, PW-1,  as would appear from his evidence, advised the deceased to take the matter  to the Panchayat so that the dispute between the parties could be resolved.   He did not pay any heed to his advice and insisted that he had a right to  plough the land as the same belonged to him.  PW-1, in his deposition, made  detailed statements as to how and in what manner the deceased was attacked  with knives by all the appellants.  He had furthermore stated  the manner in  which the injuries were caused to the deceased by each one of them.  He had  also identified the weapons of assault in Court.  The statements made by the  said witness stand corroborated by the medical evidence.  PW-2 also  supported him in all material particulars.  The fact that he was the author of  the First Information Report is not disputed.  Having found the deceased to  have expired at the place of occurrence, he only went to his house for putting  on his shirt and started for the police station.  He had to walk 8 kms.  Three  hours must have been taken to reach the police station.  It has further not  been denied or disputed that the Investigating Officer (PW-11) reached the  place of occurrence at about 12.30 p.m. on the same date and started  investigation.  The statement of PW-10 who recorded the First Information  Report has also been taken by the Investigating Officer.    It may be true that the Investigating Officer might not have made any  investigation as regards the ownership of the land, but from his evidence it is  evident that he had been informed and proceeded on the basis that the land  in question had been in possession of the deceased.  The prosecution story is  that the deceased had been ploughing the land and thus his possession  thereover cannot be disputed.  PW-11 had drawn a rough sketch which was  marked as Ex. P.13.  Sl. Nos. 1 to 7 of the said sketch indicate the land of the  deceased and his brother Raj Kumar and Sl. No. 3 thereof indicates the place  where the dead body was found being Survey No. 12/6.  The learned trial  Judge has categorically arrived at  a finding that from the evidence on record  it was  established that the occurrence took place on the land of the deceased  being Survey No. 12/6 in the centre of Kumararaja’s Karambu land,  Kumararaja’s own land being situated on the West of that land and shown in  Sl. No. 4 of the said sketch (Ex. P.13). The Investigating Officer on the date of occurrence did not find the  appellants in the village.  They were arrested after a few days from another  village. The appellants herein before the court below did not contend that they  had been in possession of the land.  If they intended to raise a right of private  defence in regard to the property, it was for them to prove that they were in  possession of the land and the deceased trespassed thereinto.  No contention  as regard the exercise of right of private defence in regard to their person  had thus been or could be raised.    In Hafiz vs. State of U.P., (2005) 12 SCC 599, this Court categorically  observed :

"It may be true that the right of private defence need not

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specifically be taken and in the event the court on the basis of the  materials on record is in a position to come to such a conclusion,  despite some other plea having been raised, that such a case had been  made out, it may act thereupon. \005\005.  

Mutually destructive defences taken by the accused persons  would also go a long way to disbelieve their story.  \005\005 "

The deceased was not armed and was all alone when he first started  ploughing the land.  Only when he was obstructed from doing so, he  approached PW-1 and PW-2.  Evidence of PW-1 appears to be natural.  He  is not only said to be an eye-witness, he walked all the way to the police  station to lodge the First Information Report as public transport was not  available.  In the First Information Report, he categorically stated that PW-2  was also an eye-witness.  The Investigating Officer (PW-11) had also found  the injuries on the person of the deceased.  Despite some minor  contradictions, both the trial Judge and the High Court placed reliance upon  the evidence of PW-1 and PW-2.  We do not find any reason to differ with  their opinion. Submission of Mr. Krishnamurthy that another First Information  Report was also lodged earlier, is based only on a suggestion made to PW- 10.  PW-10, in his deposition, categorically denied that even before lodging  the complaint Ex.P.1, another complaint was lodged at Valathi Police  Station.  It is true that the learned trial Judge had recorded a contention  raised on behalf of the accused that despite an application having been filed  by the accused, the prosecution had failed to produce Case Diary and  General Diary relating to the date of occurrence of the Valathi Police  Station.  When however questioned, the learned counsel could not point out  from the records of the case that any such application was  filed by the  accused or any order had been passed by the learned trial Judge calling for  the General Diary from the police station. The question of drawing an  adverse inference against the prosecution for non-production of the Case  Diary or the General Diary would have arisen had the Court passed an order  being satisfied that the prosecution intended to suppress some facts which  were material for the purposes of arriving at the truth or otherwise of the  prosecution case.  If no such application had been filed and no order  thereupon had been passed by the Court, the question of drawing any  adverse inference against the prosecution would not arise.   We have noticed  hereinbefore that PW-10 made a categorical statement to the effect that prior  to the lodging of the First Information Report, no other Report had been  lodged.  If that be so, the question of production of any document did not  arise unless it had been pointed out by the accused with reference to the  number or the person who made such report as to the existence or recording  of any other case in the General Diary.  Even no suggestion to that effect has  been given to PW-1.  We, therefore, have no hesitation to reject the said  contention.  We are, for the reasons aforementioned, of the opinion that the  learned trial Court and the High Court having considered the prosecution  case from all angles, no case has been made out for our interference  therewith.    The appeals are, therefore, dismissed.