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CASE NO.: Appeal (crl.)  631 of 2000

PETITIONER: Krishnan

RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 14/08/2006

BENCH: G P Mathur & R V Raveendran

JUDGMENT: J U D G M E N T

RAVEENDRAN, J.

       This appeal by special leave is directed against the judgment and  order dated 10.2.2000 of the Madras High Court in Criminal Appeal  No.571/1989. The appellant and his son Samivel were accused 1 and 2  in Sessions Case No.139/1987 on the file of the Sessions Judge, South  Arcot district. The appellant was tried for the offence of murdering his  elder brother Rathina Gounder. The appellant and his son Samivel  were also charged with the offence of causing hurt to Elumalai (son of  the deceased). The trial court vide judgment dated 27.4.1989  convicted the appellant under section 302 IPC, and sentenced him to  undergo life imprisonment. The trial court also convicted both the  appellant and his son Samivel under section 323 IPC and sentenced  them to 3 months’ rigorous imprisonment. In a separate proceeding, in  SC.No.140/1987, Sekar, the juvenile son of the appellant, was also  found guilty for causing hurt to Elumalai and was ordered to be  detained in a juvenile home for six months.  

2.      Feeling aggrieved, the appellant and his first son Samivel filed  Crl.A. No.571/1989 and Sekar filed a separate appeal in Crl.A.  No.629/1989. Both appeals were disposed of by the High Court by a  common judgment dated 10.2.2000. Criminal Appeal No.571/1989  was allowed in part. The conviction and sentence imposed on the  appellant under section 302 was set aside and instead, he was  convicted for the offence punishable under section 304, Part II, IPC,  and sentenced to undergo RI for 5 years. The conviction and sentence  of the appellant and his son Samivel under section 323 was not  disturbed. Criminal A.No.629/1989 filed by the appellant’s juvenile son  Sekar was allowed and he was acquitted. Aggrieved by his conviction  under section 304, Part II, the appellant has filed this appeal,  contending that he ought to have been acquitted by accepting his plea  of self-defence.  

3.      The prosecution case, in brief, was as follows :

3.1)    The appellant and his elder brother Rathina Gounder were  residing with their respective families in two adjoining portions, with a   common open yard in front of their houses. The appellant used to  tether his bullocks in the common yard. There was also an open  sewage drain in the common yard. To prevent pigs coming to the drain  and causing nuisance, Rathina Gounder’s wife Kasiammal covered the  said drain with thorn sticks on or about 5th or 6th of June, 1997. The  appellant removed the thorn sticks as they came in the way of  tethering his bullocks. There was a simmering discord for about 3 days

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about the thorn fencing of the drain between the families of the two  brothers, that is, Rathina Gounder, his wife Kasiammal and his son  Elumalai on the one hand, and appellant (Krishnan) and his two sons  Samivel and Sekar on the other.

3.2)    On 9.6.1987 at about 5 p.m., the appellant removed the thorn  sticks which had been placed by Kasiammal. Elumalai (PW-1) put back  the thorn sticks in place. At about 8 p.m., the appellant again removed  the thorn sticks and tethered his bullocks. Rathina Gounder who saw  the thorn sticks being removed, came and replaced the thorn sticks  over the drain. The appellant again removed them. The action of  Rathina Gounder placing the thorn sticks over the drain and the  appellant removing them, went on for a while and a quarrel developed.  The appellant told Rathina Gounder "You are always doing like this. I  will see." and took one of the thorn sticks lying on the ground and hit  Rathina Gounder on his head. When the appellant tried to hit Rathina  Gounder with the thorn stick for a second time, his son Elumalai tried  to intervene and received the blow causing injury to his right palm.  Thereafter the appellant pushed Rathina Gounder who fell down and a  protruding stone pierced near the arm-pit. The appellant again hit  Elumalai on his forehead with the thorn stick. His two sons Samivel  and Sekar also hit Elumalai. Thereafter, appellant and his two sons ran  away. Elumalai collected the thorn stick dropped by the appellant and  kept it. By then it was about 10 P.M.  

3.3)    Rathina Gounder was taken to Thirukovilur Government Hospital.   Dr. Bhaskaran (PW-3) examined him and referred him for further  treatment to Cuddalore Government Hospital. However, Kasiammal  and others took Rathina Gounder to Jipmer Hospital, Pondicherry  where Rathina Gounder succumbed to his injuries on 12.6.1987 at  about 12.45 p.m.         

3.4)    Elumalai also got himself examined at Thirukovilur Government  Hospital. When he was in the said hospital, on 10.6.1997 at about  6.00 A.M., the Sub-Inspector of Police attached to Arakandanathur  Police Station came and enquired about the incident and recorded his  complaint.  

4.      The prosecution examined 13 witnesses. Elumalai (PW-1),  Thangaraj (PW-2), Pitchaimuthu (PW-4) and Kasiammal (PW-5) were  the eye-witnesses. Elumalai, son of the deceased was an injured eye- witness. Kasiammal was the widow of the deceased, Thangaraj was  the nephew of both Rathina Gounder and the appellant, Thangaraj and  Pitchaimuthu were neighbours. All the four eye-witnesses narrated the  incident broadly in accordance with the prosecution case. They also  stated that as there was a street-light nearby they could see what  happened clearly. M. Subramaniam Pillai (PW-9) was the Panchayat  President who had switched on the street light opposite Rathina  Gounder’s house, which had lit up the area when the incident took  place.  

Dr. Bhaskaran (PW-3) had examined the deceased and his son  Elumalai for their injuries at Thirukovilur Government Hospital and  issued the injury certificates (Ex. P-2 & P-3). Atul Murari (PW-6),  Associate Professor of Forensic Medicine, Jipmer Hospital, Pondichery,   conducted the post-mortem on the body of the deceased. Both doctors  opined that death occurred on account of the head injury (lacerated  wound of scalp 3cm X 1cm X bone deep over the vault. PW-6 stated  that the corresponding internal injury was separation of coronal suture  extending literally on the right side of temporal region, total length of  the fracture being 13 cm, extra-dual haematoma  in the right temporal  region and generalized subsural and subarachnoid haemorrhage. PW-6  has opined that the head injury with corresponding internal injuries  were sufficient in the ordinary course of nature to cause death.

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Sheikh Kani (PW-12) was the Sub-Inspector of Police at  Arakandanallur Police Station who recorded the statement of Elumalai  and registered Crime No. 196 of 1987 and prepared the FIR, sketch  of  the place of occurrence  (Ex.P16) and drew the Mahazar (Ex. P-13). He  also seized the thorn stick of three feet length used by the appellant  (MO No.1) and collected blood stained soil from the spot (MO. No.3).  He also recorded the statement of Kasiammal and other witnesses. He  stated that he arrested the appellant on 11.6.1986 at 6 A.M. G.  Jagadeesan (PW-13) was the Investigating Officer, who took over the  investigation on 13.6.1987 at 2.00 P.M. PW-7 to 11 were formal  witnesses.  

5.      The trial court found that the evidence of the four eye-witnesses   (PWs.1, 2, 4 and 5) clearly established that the appellant hit Rathina  Gounder on the head with the thorn stick during his quarrel with  Rathina Gounder. The trial court rejected the case of self-defence put  forth by the appellant for the following reasons :

a)      There was no evidence to show that the appellant was injured  during the incident.  

b)      The appellant did not state in his statement under section 313  IPC, that he hit Rathina Gounder in self defence, to avoid danger  to his life.  

c)      The appellant did not establish that he gave a complaint to  Arakandanallur Police Station in regard to the attack by Rathina  Gounder and Elumalai, as no such complaint was recorded in the  said Police Station.  

The trial court further held that the appellant had acted with the  intention of causing bodily injury to Rathina Gounder and such bodily  injury inflicted by him being sufficient in the ordinary course of nature  to cause death, he was guilty of culpable homicide amounting to  murder under section 300 (Thirdly) of IPC. Consequently, the  appellant was convicted under section 302 IPC. The trial court also  held that the evidence of the four eye witnesses clearly established  that the appellant and his two sons had hit Elumalai (PW-1) and  consequently, convicted them under section 323 IPC.  

6.      The High Court affirmed the finding that Rathina Gounder died  as a result of the head injury caused by the Appellant, by hitting him  on the head with the thorn stick. It also held that the evidence of  PWs.-1, 2, 4 and 5, that the appellant suddenly picked up the thorn  stick lying nearby during a quarrel and hit the deceased as also the  fact that the appellant did not come to the place of occurrence with  any weapon, established that there was no pre-determined or pre- meditated plan or intention on the part of the appellant to cause the  death of the deceased or cause any bodily injury as is likely to cause  death; and that the appellant had hit the deceased with the knowledge  that his act of hitting the deceased on his head was likely to cause  death. The High Court was of the view that the thorn stick used (of  about three feet length) was not a dangerous weapon. Consequently,  it held that the appellant had to be convicted under section 304 Part  II, IPC and not section 302 IPC and sentenced him to five years  rigorous imprisonment. It did not disturb the conviction and sentence  under section 323 IPC.  

7.      The said decision of the High Court is under challenge in this  appeal. The learned counsel for the appellant submitted that the High  Court did not consider the plea of self-defence though specifically  raised. We find that the entire Memorandum of Appeal before the High  Court concentrated and revolved upon the plea of self-defence. The  grounds referred to the evidence of PW 2 Thangaraj and the several  circumstances, which the appellant relied on to make out a case of self

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defence. The High Court ought to have considered the said plea which  goes to the root of the matter.  

8.      A perusal of the cross-examination of PW-1, PW-2, PW-4 and  PW-5 and the statement under section 313 clearly shows that the  appellant had put forth the following pleas of self-defence : That  Rathina Gounder and his wife and son were jealous  of the appellant as  he was maintaining bullocks and cultivating the land; that therefore,  they were trying to obstruct the tethering of his bullocks in the  common yard by putting thorn sticks in that place; that there was no  drain/gutter in the common yard and therefore, the question of  covering any drain by thorn sticks did not arise; that the thorns were  pricking his bullocks and making it difficult for him to tether his cattle;  that whenever he removed the thorns and tethered his cattle, Rathina  Gounder and his son Elumalai were threatening that they will assault  him and kill him; that on the date of incident, Rathina Gounder and his  family had thrown thorny sticks next to the bullocks tethered by the  appellant, the said thorns were pricking the cattle and made it difficult  for the cattle to lie down; that, therefore, he went and removed the  thorn; sticks; that at that time, Elumalai (PW-1) came and held his  neck and Rathina Gounder came and held his hair-locks; that when he  tried to release himself, Rathina Gounder bit him next to the right  thumb and blood started oozing out; that Rathina Gounder and  Elumalai also took a stick each and slashed towards his head; that he  raised his hands to cover his head, and that the blows fell on both his  elbows resulting in lacerated wounds. The appellant also stated that  fearing for his life, he ran away and went to the Arakandanallur Police  Station around 12 O’clock mid night and explained what happened and  showed his wounds. The Sub-Inspector asked him to give a complaint  and he got a complaint written and gave it.  The Sub-Inspector took it  and stated that he has to go out; that he came back around 2 A.M. in  the morning; that   within a short time, Rathina Gounder, Elumalai,  Kasiammal and some others came to the Police Station and the Sub- Inspector took some signatures from Elumalai, and thereafter they  went back; that the Sub-Inspector detained him in the police station  for two days and arranged for treatment for the hand wounds through  a Homeopathy Doctor; and that only on Thursday, he sent him to  court. He also stated that he did not hit Rathina Gounder or Elumalai.  

9.      It is now well settled that the onus is on the accused to establish  that his action was in exercise of the right of private defence. The plea  can be established either by letting in defence evidence or from the  prosecution evidence itself, but cannot be based on speculation or  mere surmises. The accused need not take the plea explicitly. He can  succeed in his plea if he is able to bring out from the evidence of the  prosecution witnesses or other evidence that the apparent criminal act  was committed by him in exercise of his right of private defence. He  should make out circumstances that would have reasonably caused an   apprehension in his mind that he would suffer death or grievous hurt if  he does not exercise his right of private defence. There is a clear  distinction between the nature of burden that is cast on an accused  under section 105 of the Evidence Act (read with section 96 to 106 of  Indian Penal Code) to establish a plea of private defence and the  burden that is cast on the prosecution under section 101 of the  Evidence Act to prove its case. The burden on the accused is not as  onerous as that which lies on the prosecution. While the prosecution is  required to prove its case beyond a reasonable doubt, the accused can  discharge his onus by establishing a preponderance of probability \026 (vide  Partap vs. State of U.P. (1976 (1) SCC 757); Salim Zia vs. State of UP (1979  (2) SCC 648); and Mohinder Pal Jolly vs. State of Punjab (1979 (3) SCC 30).   

In Sekar vs. State [2002 (8) SCC 354], this Court observed :  A plea of right of private defence cannot be based on surmises  and speculation. While considering whether the right of private  defence is available to an accused, it is not relevant whether he

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may have a chance to inflict severe and mortal injury on the  aggressor\005. In order to find whether right of private defence is  available or not, the injuries received by the accused, the  imminence of threat to his safety, the injuries caused by the  accused and the circumstances whether the accused had time to  have recourse to public authorities are all relevant factors to be  considered. Whether in a particular set of circumstances, a  person acted in the exercise of the right of private defence, is a  question of fact to be determined on the facts and  circumstances of each case. No test in the abstract for  determining such a question can be laid down. In determining  this question of fact, the Court must consider all the surrounding  circumstances. It is not necessary for the accused to plead  in so many words that he acted in self-defence. If the  circumstances show that the right of private defence was  legitimately exercised, it is open to the Court to consider  such a plea. In a given case, the Court can consider it  even if the accused has not taken it. If the same is  available to be considered from the material on record.                                                                (emphasis supplied).

       The above legal position was reiterated in Rizan v. State of  Chhattisgarh [2003 (2) SCC 661]. After an exhaustive reference to  several decisions of this Court, this Court summarized the nature of  plea of private defence required to be put forth and the degree of  proof in support of it, thus :

"Under Section 105 of the Indian Evidence Act, 1872, the  burden of proof is on the accused, who sets off the plea of self- defence, and, in the absence of proof, it is not possible for the  court to presume the truth of the plea of self-defence. The court  shall presume the absence of such circumstances. It is for the  accused to place necessary material on record either by himself  adducing positive evidence or by eliciting necessary facts from  the witnesses examined for the prosecution. An accused  taking the plea of the right of private defence is not  required to call evidence; he can establish his plea by  reference to circumstances transpiring from the  prosecution evidence itself. The question in such a case  would be a question of assessing the true effect of the  prosecution evidence, and not a question of the accused  discharging any burden. When the right of private defence is  pleaded, the defence must be a reasonable and probable version  satisfying the court that the harm caused by the accused was  necessary for either warding off the attack or for forestalling the  further reasonable apprehension from the side of the accused.  The burden of establishing the plea of self-defence is on the  accused and the burden stands discharged by showing  preponderance of probabilities in favour of that plea on the basis  of the material on record\005\005\005\005. The accused need not prove  the existence of the right of private defence beyond  reasonable doubt. It is enough for him to show as in a  civil case that the preponderance of probabilities is in  favour of his plea."

[Emphasis supplied]     

10.     We will examine the evidence, keeping in view, the said  principles. Thangaraj (PW-2) is a neighbour and nephew of both the  deceased and the appellant. In his examination-in-chief, he gave  details of the quarrel and altercation between Rathina Gounder and the  appellant in regard to removal of the thorny sticks covering the drain,  and stated that during the quarrel, Krishnan took a thorn stick that  was lying nearby and hit Rathina Gounder on his head; that when the  appellant tried to hit Rathina Gounder the second time, Elumalai tried

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to prevent it and sustained injury to his right hand; and that the  appellant thereafter pushed Rathina Gounder who fell down. In the  cross-examination, he stated that as it was summer, water was not  stagnating in the drain situated in the common yard and there was no  nuisance by pigs; that because of the thorn sticks, the cattle had no  place to rest; that when Rathina Gounder and the appellant were  pushing each other during the quarrel regarding thorn sticks, Rathina  Gounder bit appellant’s hand between the right thumb and index  finger; that when Rathina Gounder and Elumalai attempted to hit the  appellant with a thorn stick, the appellant tried to prevent it by  covering his head with his hands and the blows landed on both his  elbows resulting in wounds. He has also stated that he had  accompanied Rathina Gounder and others to Arakandanallur Police  Station at 2 A.M. that then he saw the appellant sitting in the police  station and at that time also he saw the injuries on the hands of the  appellant.  

The above evidence clearly and completely corroborates and supports  the case of self-defence put forth by the appellant. What is significant  is that the PW-2 was not subjected to any re-examination on this  aspect nor was he sought to be declared hostile. In fact, the manner in  which he has given evidence in examination-in-chief and in the cross- examination shows that he was not a partisan witness and was giving  evidence in a natural manner. The said evidence of Thangaraj (PW-2),  which fully supports the case of self-defence put forth by the  appellant, has not been considered by the trial court and completely  ignored by the High Court.

11.     We may also refer to the evidence of the other eye-witnesses in  this behalf. Elumalai (PW-1) has of course denied the suggestions that  the deceased bit the right hand of the appellant, and that he and the  deceased had hit the appellant and the blows had landed on  Appellant’s elbows when he raised his hands to cover his head. When  he was asked whether he noticed the blood on the hands of appellant,  he stated that he did not "notice" it. He admitted the differences and  quarrels between his family and the appellant in regard to tethering of  cattle by the appellant and keeping thorny sticks in the common yard.  Pitchaimuthu (PW-4) in his cross-examination has stated that he did  not notice whether Rathina Gounder and the appellant were pushing  each other but he noticed Rathina Gounder repeatedly putting the  thorn sticks  and the Appellant repeatedly removing them; that there  was no stagnant water in the drain, over which the thorn sticks were  being placed; and that both Rathina Gounder and the appellant,  quarrelling and pushing each other came from the drain area to the  road. He states that he did not see the deceased and Elumalai hitting  the appellant and that he did not know whether the appellant received  injuries to his hands and whether the blood was oozing from the  wounds. It is evident that PW-4 was not a witness to the entire  incident and that he saw only a part of it. Kasiammal (PW-5), in her  cross-examination admitted that there were altercations on account of  tethering of cattle and removing of thorny sticks; that between 8 & 9  P.M. on the day of the incident, both Rathina Gounder and the  appellant were respectively putting and removing the thorn sticks  repeatedly, and that when the appellant hit her husband with the  thorn stick, her husband did not fall down. She, of course, denied that  Rathina Gounder bit the appellant in his hand and also denied that  Rathina Gounder and Elumalai hit the appellant with sticks.  

12.     Out of the four eye-witnesses, two (PWs.1 and 5) are the son  and widow of the deceased. The evidence of these two witnesses  establishes that there was enmity and an ongoing dispute in regard to  the use of the common yard; That on the day of the incident, the   entire quarrel arose because PW-5 initially placed the thorn sticks over  the area where the appellant was tethering his cattle, and the  deceased  and PW 1 prevented the appellant when he tried to remove

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them; and that as a consequence there was an altercation between  the deceased and the appellant when the deceased repeatedly placed  the thorny sticks and the appellant repeatedly removed them. In fact  the evidence of the two independent eye-witnesses- PW-2 and PW 4,  clearly show that there was no stagnant water in the drain and  therefore, there was no need to place  any thorn sticks over that area.  It is clear that the deceased, PW-1 and PW-5 were bent upon  preventing the appellant from tethering his cattle in the common yard.  In view of the admitted discord and disputes between the family of the  deceased and the appellant, and being acting participants in the  dispute which led to the incident, it is but natural that these two  witnesses will highlight only the acts of the appellant and not the acts  of the deceased and PW-1.

13.     In regard to the evidence of PW-4, Pitchaimuthu, we find that he  saw the incident from a distance. He came out of his house only after  the altercation/quarrel had gone on for some time and, therefore, had  seen only a part of the incident. He admits that the altercation centred  around the appellant asking why the thorn sticks were put at the place  where he was tethering his cattle, and the deceased asking why  appellant was removing the thorny sticks. He also admits that when he  first saw the incident, both were holding the thorny sticks and pulling  each other. He also admits that the deceased was repeatedly placing  the thorny sticks and the appellant was repeatedly removing them. He  also admits that both the deceased and the appellant quarreling and  pushing each other, came from the drain area to the road. Therefore,  the evidence of PW-2 Thangaraj becomes crucial. He had seen the  incident from the beginning and has narrated what had happened. He  has clearly admitted that when the deceased and the appellant were  quarreling and pulling each other, Rathina Gounder bit the appellant in  his hand between the right hand thumb and the index finger, and that  both the deceased and his son Elumalai attacked the appellant with  sticks and to protect his head, the appellant raised his hands and got  injured in the elbow. It becomes obvious that apprehending grievous  hurt, he took the thorn stick lying near by and hit the deceased to  protect himself. The appellant was neither armed with any weapon  when he came to the spot nor bring any thing from his house after the  quarrel started.  He just picked up the thorn stick which was lying at  the spot. This clearly probabilises a case of self-defence.

14.     Another significant aspect to be noticed is that both Thangaraj  (PW-2) and Pitchaimuthu (PW-4) admit that there was no stagnant  water in the drain situated in the common yard. We have referred to  this fact earlier also. Therefore, the case of the prosecution that the  pigs were coming and causing nuisance in the stagnant water in the  drain and therefore, thorn sticks were placed by the family of the  deceased to cover the drain, is proved to be false. It became clear that  the deceased and his wife and son were putting thorny sticks to  prevent the appellant from tethering his cattle and they started the  discord.  

15.     The trial court considered the plea of self-defence but rejected it   on the ground that the appellant did not state in his statement under  section 313 Cr.P.C. that he had hit Rathina Gounder in self-defence.  Obviously, an accused cannot be expected to admit that he had  inflicted the blow that killed the deceased. Where the plea of the  accused, when read with the evidence of the eye witnesses, brings out  a set of facts and circumstances showing that the accused acted in  exercise of the right of private defence, the fact that the accused in his  313 statement only referred to the acts of the deceased and his son  hitting him and did not admit that he hit back the deceased, is not a  ground to reject the plea of private defence. The approach of the trial  court to the plea of private defence was erroneous. The High Court did  not go into this aspect at all.

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16.     It is true that the appellant has not examined the Doctor who  treated his injuries on his elbows. There is also no FIR in regard to  appellant’s version of the incident. There is nothing to show that the  Jail Doctor recorded the injuries. These factors would normally militate  against acceptance of a plea of self defence. But the clean and  uncontroverted evidence of PW-2 and the plausible explanation by the  accused in his statement under Section 313 tilt the balance. The court  must be objective and examine the matter on the facts and  circumstances of each case to find out whether the situation was such  as was likely to reasonably cause apprehension in the mind of the  accused that death or grievous hurt would be caused to him if he did  not act in self defence. Hs action in hitting the deceased on his head  by taking a stick lying on the ground, was a reflex action to save  himself from the attack by the deceased and his son. The appellant  had not gone to the spot with any weapon. There was a lengthy  quarrel and scuffle between the deceased and the appellant. The  deceased and his wife and son were the root-cause for the quarrel as  they put thorny sticks at the place where appellant was tethering his  cattle. The evidence probabilises the defence version that the  deceased and his son had hit the appellant with sticks on his head and  the blows landed on his elbows when he raised his hands to protect his  head, and that at that stage, the appellant picked up one of the thorny  sticks which were lying at the spot and hit the deceased, to protect  himself and not with the intention of killing him. The deceased died  two days later on account of the resultant injury. The accused has also  stated that he was detained in the police station on the night of 9th ,  but was shown to have been arrested only on 11th. It is not necessary  to go into this aspect, as the preponderance of probabilities show that  the act of the appellant was in all probability, in exercise of his right of  private defence.

17.     For the foregoing reasons, we allow this appeal, set aside the  conviction under sections 302 and 323 and acquit the appellant of the  charges. His bail-bonds shall stand discharged.