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PETITIONER: PERIASAMI AND ANOTHER

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT:       25/09/1996

BENCH: THOMAS K.T. (J) BENCH: THOMAS K.T. (J) ANAND, A.S. (J)

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      THOMAS.J.      We have  pronounced  the  verdict  in  this  appeal  on 29.8.1996 by  altering the  conviction of the two appellants to the offence under section 304 part I read with section 34 of the IPC and sentencing them each to rigorous imprisonment for seven  years. However,  we reserved  our reasons thereof and hence we now state the reasons as under:-      First  appellant   (Periasamy)  and   second  appellant (Ramaswamy) were  prosacuted along  with one  Murugesam  for offences under  section 302/34  IPC on  the allegation  that they with  common intention  to murder  deceased Ranganathan attached him  with billhook,  spear and  lathi at about 9.30 a.m. on  12.6.1989. Sessions  Court acquitted  all the three accused, but  the High  Court of  Madras, on  appeal by  the State,  set  aside  the  acquittal  and  convicted  the  two appellants under  section  302/34  IPC.  The  other  accused Murugesan was,  however, convicted  only under  section  324 IPC. Appellants  have filed  this appeal  under section 2 of the  Supreme   Court  (Enlargement  of  Criminal  Appellate) Jurisdiction Act 1970.      Prosection story, in brief, is the following:-      periasamy (first appellant) is the son and Murugesan is the nephew of Ramaswamy (second appellant). About five years prior to the murder, second appellant’s daughter Mallika was indecently assaulted by deceased Ranganathan for which there was a  criminal case  and Ranganathan  was convicted in that case. A  couple of  years thereafter  the plantain  crops of deceased Ranganathan  were destroyed  by the goats of second appellant over  which there  was  some  altercation  between them. Thus,  bad blood  existed  between  the  deceased  and second appellant’s family.      On  the   morning  of   the  occurrence   day  deceased Ranganathan  in   association  with   four   other   persons (including PW1  and PW2  ) engaged themselves in the work of shifting an  oil engine  to a field for irrigation purposes. By about  9.30 a.m.  deceased Ranganathan  alone went  to  a

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nearby plantain  grove to ease himself. After a little while PW1 and  PW2 heard the squeal of a pig followed by the yells of Ranganathan.  PW1 and  PW2 rushed  to the  place and then they saw  the first  appellant inflicting a blow on the neck of Ranganathan  with a  billhook and  the  second  appellant stabbing him  with a spear on the chest. When deceased tried to escape  he was  assaulted by Murugesan with lathi, Second appellant again  stabbed him  with the  spear. Deceased fell down but  first appellant  cut him  on  the  neck  with  the billhook two or three times more. Assailants thereafter took to their heels. Deceased Murugesan succumbed to his injuries within an hour.      PW1 went  to the  local village  administrative officer (PW-8) and  informed him  of the  incident. PW8  went to the spot of  occurrence and  verified  the  correctness  of  the information furnished  by PW1. After returning to his office PW8 recorded  the statement  of  PW-1  (Ext.P-1)  which  was forwarded to  Velur Police  Station. FIR was prepared on its basis and  during investigation appellants were arrested. On completion of  the investigation  the police  charge-sheeted the appellants and Murugesam arraying them as A1, A2 and A3, respectively.      PW1 and  PW2 are the only eye witnesses examined by the prosecution PW5  (Gunasekharan) deposed  that PW2  rushed to his house soon after the occurrence and told him of what the three accused  did to  the deceased  and that he went to the spot with  PW 2  and found his brother badly mauled. He made efforts to  remove the  injured  to  the  hospital  but  his brother died before reaching the hospital. PW6 said that she saw the  three accused  running away from the scene with the weapons,  PW7  said  that  he  over-heard  some  pedestrians mumbling between  each other  that these  three accused  had given cut  blows to  the deceased  and a little later he saw the accused  washing themselves  and  cleaning  the  weapons beneath a  bridge. PW7  further said  that he  over-heard  a conversation as  between the accused that the weapons should be  concealed   and  that   they  should   consult  a  legal practitioner at Selam.      Learned Sections  Judge declined  to place  reliance on the teescimony  of any  of the above witnesses. The delay in registering the  FIR and  a recital  found  in  the  inquest report showing the time of death of the deceased as 10.30 in the night  on 12  6..1989 were  highlighted by  the  learned Sessions Judge.      High Court  of Madras  in reversal  of the order, found the evidence  of PW1 and PW2 trustworthy. Learned Judge also placed reliance  on the  testimony  of  PW5,  PW6  and  PW7. Howaver, Court  did not  accept the prosecution version that the third  accused Murugesan  had common intention to murder the deceased.  Hence,  the  appellants  were  convicted  and sentenced as aforesaid.      Shri  Siva  Subramaniam,  learned  senior  counsel  who argued for  the appellants has taken us through the material evidence and  advanced several  contentions, main among them is that  High Court  ought not have lightly intarferred with the acquital  passed by  the trial  court. Alternatively, he argued that  the conviction  should not,  in any view of the matter, have  gone beyond  the offence  of culpable Homicide not amounting to murder.      After going  through the evidence of PW6 and PW7 we too are not  impressed by  their testimony.  We are in agreement with the learning Sections Judge that no credit can be given to their evidence. But the evidence of PW1 and PW2 stands on a different footing.      The first  hurdle which  stands in the way of accepting

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PW-1’s evidence  is the delay involved in preparing the FIR. PW8 did  not take down the statement of PW1 when it was made to him,  but he  went to  the spot to ascertain the truth of account  given   by  PW1.  There  was  the  possibility  for deliberations and  confabulations. In  this context,  we may refer to the observations made by one of us (Dr.Anand J.) in Meghraj singh vs. State of U.P. 1994 SCC 188.      "The  object   of  insisting   upon      prompt lodging  of the  FIR  is  to      obtain  the   earliest  information      regarding the circumstance in which      the crime  was committed, including      the names  of the  actual  culprits      and the  parts played by them , the      weapons if  any, used,  as also the      names of the eye withnesses if any.      Delay  in  lodging  the  FIR  often      results in  smbellishment. which is      a creature  of an  afterthought. On      account of  delay, the FIR not only      gets   bereft   of   advantage   of      spontaneity, danger  also creeps in      of the  introduction of  a coloured      version or exaggerated story."      However, the  above weakness attached to Ext.P-1 is not enough to  vitiate the  entire testimony of PW-1. We have to see whether  assurance can  be obtained  from other evidence regarding the truth of his version.      PW-2 also  said that he saw the appellants striking the deceased with  the weapons  when he  went to the scene along with PW1.  His evidence  is consistent with the testimony of PW-1. It  is appropriate,  in this context, to refer to PW-5 (Gunasekharan) who  is the  brother of the deceased. He said that by  about 9.30  A.M. PW-2 ran to his house and told him that the  three accused  had dealt blows on Ranganathan with billhook, spear and stick. PW-5 then rushed to the scene and saw the  deceased lying  badly  mauled.  The  witness,  then narrated the efforts made to take his injured brother to the hospital and  how the  efforts failed. The testimony of PW-5 inspires confidence.  It renders  the version  of PW-2  also believable.      The recital in the lnquest report regarding the time of death of  the decceased  as 10.30  P.M. on  12.6.1989 has no utility whatsoever now. Firstly, because the said recital in the inquest  report is only a reproduction of what witnesses would have  told the  investigating officer. It falls within the sweep  of the  interdict contained in section 162 of the Code of  Criminal Procedure (for short ’the code’) and hence could not  be used for any purpose (except to contradict its author). The  mere fact that such a rscital found a place in the inquest  report is  not  enough  to  save  it  from  the prohibition  provided   in  the   section.  Secondly,   even otherwise we are satisfied that the time 10.30 P.M. shown in the inquest  report is  only a  mistake for  10.30 A.M.  and hence no implication would flow out of such an error.      Learned counsel  contended that  evidence  of  the  eye witnesses is in conflict with the medical evidence and hence the sessions  judge has  rightly  discarded  it.  Both  eye- witnesses ( PW-1 & PW-2) said that first appellant inflicted three cuts  with the  billhook on  the neck,  but  only  one incised injury  was noted  by the doctors on the neck of the deceased. The  description of that injury in the post-mortem certificate is this:      "An incised  wound 20cm  x  10cm  x      19cm over the left side of the neck

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    extending from the left side of the      clavicle to  the nape  of the neck.      Muscles and blood vessels were cut.      Cervical vertebra was cut at C5."      When Dr.  Ilango (PW-3)  was asked in cross-examination whether such  injury can be caused in one cut he answered in the affirmative.  But no  question was  put  to  the  doctor whether the  said injury  could as well have been the result of multiplicity  of cuts  on the  same situs. Looking at the width of  the injury  as 10 cm. extending from left clavicle upto the nape of the neck having a depth of 19 cm. involving blood-vessles and  also the 5th cervical vertibra we have no difficulty in  countenancing  the  possibility  of  multiple blows with a billhook resulting in that injury.      We, therefore  concur with  the conclusion  of the High Court that  appellants have  inflicted the fatal injuries on the deceased  with  lethal  weapons  and  find  no  conflict between the occular testimony and the medical evidence.      We shall  now  deal  with  the  alternative  contention advanced by  Sri Siva  Subramaniam, learned  senior counsel, that the  offence would  not go  above section 304 part 1 of the IPC.  This  contention  is  made  on  the  premise  that deceased  was  the  aggressor  in  the  incident  and  hence appellant had  initial right  of private defence though they would have  exceeded that  right.  We  may  point  out  that appellants have  not stated, when examined under section 313 cf the Code, that they have acted in exercise of such right. Of course,  absence of such a specific plea in the statement is not enough to denude them of the right if the same can he made out otherwise.      While dealing  with the  said alternative contention we have to bear in mind section 105 of the Evidence Act. A rule of burden  of proof is prescribed therein that the burden is on the  accused to  prove  the  existence  of  circumstances bringing the  case within  any of  the exceptions  "and  the Court shall  presume the  absence of such circumstancs. "The said rule does not whittle down the axiomatic rule of burden (indicated in  section 101)  that the prosecution must prove that the  accused has committed the offence charged against. The traditional rule that it is For prosecution to prove the offence beyond  reasonable doubt  applies  in  all  criminal cases  except   where  any   particular  statute  prescribes otherwise. The legal presumption created in section 105 with the words  "the Court  shall presume  the  absence  of  such circumstances"   is not  intended to  displace the aforesaid traditional burden  of the prosecution. It is only where the prosecution has  proved its  case with reasonable certainity that the court can rest on the presumption regarding absence of  circumstances   bringing  the   case  with  any  of  the exceptions. This presumption helps the Court to determine on whom is  the burden  to prove facts necessary to attract the exception  and  an  accused  can  discharge  the  burden  by ’preponderance of probabilities’ unlike the prosecution. But there is  no presumption that an accused is the aggressor in every case  of homicide.  If there  is any reasonable doubt, even from  prosecution evidence,  that the  aggressor in the occurrence was  not the  accused but  would  have  been  the deceased party, then benefit of that reasonable doubt has to be extended to the accussed, no matter he did not adduce any evidnece in that direction.      The above  legal position  has been succintly stated by Subbarao J.  (as he  then was  ) in  a case where an accused pleaded the excepetion under section 84 IPC (Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat: AIR 1964 SC 1563):

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    "The prosecution,  therefore, in  a      case of homicide shall prove beyond      reasonable doubt  that the  accused      caused with the requisite intention      described in  S.299  of  the  Penal      Code.  This  general  burden  never      shifts and  it always  restson  the      prosecution      ...................................      .....If the  material placed before      the  court,   such  as,   oral  and      documentary evidence, presumptions,      admissions or  even the prosecution      evidence,  satisfies  the  test  of      "prudent  man",  the  accused  will      have  discharged  his  burden.  The      evidence  soplaced   may   not   be      sufficient to  discharge the burden      under section  105 of  the Evidence      Act, but  it may raise a reasonable      doubt in  the mind  of a  judge  as      regards,  one   or  other   of  the      necessary   ingredients    of   the      offense itself".      In Partap  vs. The  State of Uttar Pradesh 1976 (2) SCC 798 a  three judges  bench was  considering a case where the accused failed  to adduce  evidence to  establish the  under section 95  IPC. It was held that even if the accused failed to establish  his plea,  in a case where prosecution has not established its  case beyond  reasonable doubt  against  the appellant on  an essential  ingredient  of  the  offence  of murder,  the   plea  of  right  of  private  defence  cannot reasonably  be  ruled  out  from  prosecution  evidence  the benefit of  it must  go to  the accused. In Yogendra Morarji vs. The  State of  Gujarat: (AIR 1980 SC 660 ) another bench of three  judges of  this Court deal with section 105 of the Evidence Act and observed thus:      "Nothwithstanding  the  failure  of      the accused to establish positively      the  existence   of   circumstances      which would  bring his  case within      an  Exception,   the  circumstances      proved   by   him   may   raise   a      reasonable doubt with regard to one      or   more    of    the    necessary      ingredients of  the offence  itself      with  which   the  accused   stands      charged. Thus,  there may  be cases      where, despite  the failure  of the      accused  to  discharge  his  burden      under  section   105  the  material      brought on  the record  may, in the      totality   of    the   facts    and      cicumstances of the case, be enough      to induce  in the mind of the Court      a reasonable  doubt with  regard to      the  mens   tea  requisite  for  an      offence under  section 299  of  the      Code".      Keeping  the   above  legal   position  in   mind,   we scrutinised the  evidence to  ascertain whether the deceased could have been the aggressor. Neither PW1 nor PW2 could say how the occurrence started. The possibility that before they reached the  place, some  events would  have  already  taken place cannot be ruled out. PW1 and PW2 over-heard the squeal

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of a  pig. They also over-heard the sound of a quarrel. When they reached  the scene  they saw the carcass of a slain pig lying nearby.  The motive  suggested by  the prosecution was sufficient for  the deceased  as well  to  entertain  animus towards second  appellant. Further,  both sides  would  have confronted with  each other on that morning abruptly without any prior knowledge or inkling that deceased might go to the plantain grove at the crucial time for answering the call of nature.      The above  circumstances are  broad  enough  to  instil reasonable doubt  in our mind that accused would have picked up a  quarrel with  the second  appellant and then the other events had  followed. Law  entitles the  appellants to  have benefit of  that reasonable  doubt concerning  the  begining part of  the occurrence and renders them liable for culpable homicide not amounting to murder.      The above  are our  reasons to  alter the conviction to section 304  part 1  of IPC  and for  imposing a sentence of rigorous imprisonment for seven years on each of them.