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PETITIONER: VIJAYAN @ VIJAYAKUMAR

       Vs.

RESPONDENT: STATE REP.BY INSPECTOR OF POLICE

DATE OF JUDGMENT:       22/03/1999

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

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  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.

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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 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 PW3Poosappan dated 5.10.1984.

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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."

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

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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  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

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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  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.