Chinnaraj (alias) Ayyappan, In re. v. . — 1986 DIGILAW 405 (MAD)

Judgment The fourth accused in S.C.No.8 of 1983 on the file of the learned Principal Sessions Judge, Ramanathapuram Division at Madurai, has preferred this appeal challenging the legality and correctness of his conviction under Sec.304, Part I, Indian Penal Code and sentence to undergo rigorous imprisonment for seven years. 2. This appellant along with four others were tried for the offence under Sec.302, read with 34, Indian Penal Code, on the allegation that on 4.10.1981 at about 4.30 p.m. near Uppathur busstand all of them were armed with dangerous weapons and the first accused stabbed Thavasi alias Appakannu with vel-kathi on the chest, the second accused stabbed him with kuthu-kambu on the chest, the third accused cut him on the back of the neck indiscriminately with aruval, the fourth accused cut him on the left shoulder and left arm put with aruval and the fifth accused cut him on the right thigh and on the back of the right knee with aruval indiscriminately and as a result of the same he died instantaneously. In support of the same, the prosecution examined P.Ws.1 to 16, filed Exs.P1 to 19 and marked M.Os.1 to 6. 3. The case of the prosecution as revealed from the oral and documentary evidence can succinctly be stated as follows: Accused 1 and 2 are brothers. Accused 3 and 4 are brothers. The fifth accused is the sister’s husband of accused 1 and 2. Accused 3 and 4 are also the sons of the maternal uncle of accused 1 and 2. P.W.3’s brother was given in marriage to P.W.1. The deceased is the younger brother of P.W.1. P.W.1’s younger sister is married to P.W.3’s younger brother. The sister of accused 3 and 4 is the wife of P.W.3. P.W.3’s wife’s sister was given in marriage to the second accused. Thus, both the parties are inter-related to each other and they are all residents of Uppathur. P.W.9 is the father of. the deceased. His land and that of accused 1 and 2 are separated by a common ridge. After the marriage of the sister of accused 1 and 2 with the fifth accused about 15 years ago, the said land was given to the fifth accused’s wife as stridhana and that the fifth accused was enjoying the said land. There was boundary dispute between the fifth accused and P.W.9. After the marriage of the sister of accused 1 and 2 with the fifth accused about 15 years ago, the said land was given to the fifth accused’s wife as stridhana and that the fifth accused was enjoying the said land. There was boundary dispute between the fifth accused and P.W.9. The first accused gave a petition to the Tahsildar to measure the lands and fix the boundary, under Ex.P6 on 25.5.1981. P.W.9 also gave a similar petition under Ex.B7 to the said Tahsildar to Sattur. P.W.10, Surveyor, surveyed the lands and fixed the boundary. He also fixed the boundary stones in the presence of P.W.9, the fifth accused and others on 13.7.1981. On the said survey, it was found that P.W.9 encroached a portion of the land of the fifth accused. However, P.W.9 and his son, the deceased by name Thavasi alias Appakannu, removed the stones fixed by the surveyor. The fifth accused gave a petition to the police under Ex.P15. P.W.15, Sub Inspector of Police, inspected the land and enquired into the petition. P.W.9 gave an undertaking Ex.P5 on 12.8.1981 to the effect that he would not interfere with the enjoyment of the property in the possession of the fifth accused and cause any harm and also undertook to refix the boundary stones removed by him. But, he did not act as per the said undertaking. Hence the deceased’s family and the accused’s family are on inimical terms. Yet another motive, according to the prosecution, is that the first accused wanted to draw electric wire from his house, which is situate on the east of the house of P.W.9, the new built house on the west of the house of P.W.9, through the vacant land in front of the house of P.W.9. In respect of the same, P.W.9 objected and reported to the electricity officials. P.W.11 Junior Engineer, Electricity Department, has spoken about the same. In respect of taking electric wire also, there was enmity between the two families. 4. On the day of occurrence, namely, on 4.10.1981 at about 3 p.m. P.W.8 asked his wife to direct the deceased to go to the garden immediately after his return to the house. At about 4.30 p.m. the deceased was proceeding from his house to the field and when he approached near the bus stand, all the accused, who were armed with weapons, came there and surrounded him. At about 4.30 p.m. the deceased was proceeding from his house to the field and when he approached near the bus stand, all the accused, who were armed with weapons, came there and surrounded him. The first accused stabbed him with vel-kambu on the left side of the chest; the second accused stabbed him with kuthu-kambu on the right side of the chest, the third accused cut him on the back of his neck and also on the right side back indiscriminately with aruval; the second accused stabbed him with kuthu-kambu on the right shoulder again, the fourth accused cut him with aruval on his left shoulder and left arm pit indiscriminately and the fifth accused cut him number of times on his right thigh and back of the right knee. The deceased Thavasi alias Appakannu on receipt of the injuries fell down and died instantaneously. Thereafter the accused ran away with their weapons towards north. At about 4.30 p.m., P.W.1 saw the deceased proceeding towards the bus stand. As directed by P.W.8, P.W.1 wanted to inform him to go to the field. So she was following him at the time of the occurrence. She witnessed the occurrence. P.W.2, brother of the deceased and P.W.3 and others also witnessed the occurrence. P.W.4 who also witnessed the occurrence was treated as hostile. It is stated that P.W.3 wanted to intervene when the accused surrounded the deceased at the first instance, but he was prevented from approaching the deceased by P.W.7 and another. P.W.7 was also treated as hostile. 5. Sometime thereafter P.W.1 along with her father P.W.9, went to the Sattur Police Station and narrated the incident. P.W.15, Sub Inspector, recorded the complaint Ex.P1 at about 6.30 p.m. from P.W.1. On the basis of the same, he registered a case in Cr.No.713 of 1981 under Secs.302, 147, 148 and 341, I.P.C. and sent express reports to the higher officials. He also informed about the registration of this case to the Inspector, Sattur, over phone. P.W.16, Inspector, inspected the scene place, prepared the observation mahazar Ex.P8 and drew the rough sketch Ex.P16. He held inquest on the dead body between 9.30 P.M. and 12.30 midnight. Ex.P17 is the inquest report prepared by him. 6. He also informed about the registration of this case to the Inspector, Sattur, over phone. P.W.16, Inspector, inspected the scene place, prepared the observation mahazar Ex.P8 and drew the rough sketch Ex.P16. He held inquest on the dead body between 9.30 P.M. and 12.30 midnight. Ex.P17 is the inquest report prepared by him. 6. P.W.5, Civil Assistant Surgeon attached to the Government Hospital, Sattur, on receipt of the requisition Ex.P2 from P.W.16 conducted post-mortem examination over the dead body of Thavasi alias Appakannu and he found the following external injuries: 1. An incised wound of 8 x 4 x 5 cm deep on the left side of the chest extending from a point on the left border of the sternum about 4 cm below the angle of sternum, runs laterally across the chest. 2. An incised wound of 6 x 3 x 4 cm just below the right nipple. 3. An obliquely placed incised wound of 15 x 7 x 4 cm. deep on the right side of the back starting just below the right axilla, extends towards and medially to end at a point 1" below the inferior angle of scapula. 4. An obliquely placed incised wound of 4 x 1.5 x 1 running from above downwards at the back of the upper part of right arm. 5. An incised wound of 22 x 4 x 10 cm. deep extending from the upper surface of left shoulder (acromial process) runs horizontally across the back of the neck to end at a point 5 cm right lateral to the midline of the back of the neck. 6. An obliquely placed incised wound of 15 x 6 x 5 cm. on the upper part of the outer aspect of left arm. 7. An obliquely place incised wound of 12 x 5 x 5 cm. on the left side of the back just lateral to the left scapula. 8. An incised wound of 15 x 6 cm bone deep on the lower part of back of right thigh just above the knee joint. 9. An incised wound of 16 x 5 cm x bone deep on the upper part of lateral aspect of right thigh. 10. A small incised wound of 2.5 x 1/2 x 1.5 cm. on the right scapular region. 11. A small lacerated wound which is partially healed (old wound) on the middle l/3rd of left leg. 9. An incised wound of 16 x 5 cm x bone deep on the upper part of lateral aspect of right thigh. 10. A small incised wound of 2.5 x 1/2 x 1.5 cm. on the right scapular region. 11. A small lacerated wound which is partially healed (old wound) on the middle l/3rd of left leg. The wound was bandaged. 7. On internal examination; On exploration of wound No.5 it is seen that the muscle, vessels and nerves on the nape of neck on left side is cut. On further exploration, it is seen that the body of 7th cervical vertebra as well as the spinal cord at the level is cut. Thorax: Left third rib near its junction with costal cartilage is cut, corresponding to injury No.1 Right fifth rib is cut in its proximal l/3rd, corresponding to injury No.2. Right fifth rib is cut in its posterior l/3rd, corresponding to injury No.3. There was an incised wound of 1.5 x 1/2 x 1 cm in the anterior surface of right middle lobe, corresponding to injury No.2. There was also an incised wound of 1 x 1/2 x 1/2 cm on the anterior surface of left upper lobe near its medial border, corresponding to injury No.1. P.W.5 was of the opinion that injuries 3 and 5 to 10 could have been caused by a weapon like aruval and injury No.1 could have been caused by cutting with a velknife. After stabbing on the right and left chest with velkambu, if aruval is used for cutting at the same spot, injuries 1 and 2 are possible. Injury No.4 is possible, after being stabbed with spike, if aruval is used at the same spot. According to the age of injury No.11, P.W.5 has stated that it might have been 4 to 5 days prior to autopsy. All the injuries are grievous in nature and particularly injury Nos.1, 2 and 5 are necessarily fatal. P.W.5 was of the opinion that the deceased would appear to have died of haemorrhage and shock on account of the injuries to the lungs and spinal cord, corresponding to injuries 1, 2 and 5, about. 16 to 18 hours prior to autopsy. Ex.P3 is the postmortem certificate issued by him. 8. P.W.16 continued further investigation. P.W.5 was of the opinion that the deceased would appear to have died of haemorrhage and shock on account of the injuries to the lungs and spinal cord, corresponding to injuries 1, 2 and 5, about. 16 to 18 hours prior to autopsy. Ex.P3 is the postmortem certificate issued by him. 8. P.W.16 continued further investigation. He arrested the fourth accused, the appellant herein, at 8.30 P.M. on 5.10.1981 at the junction of Krishnan Koil and he gave a voluntary statement Ex.P18. On the basis of Ex.P18, he registered a case in Crime No.717 of 1981 under Sec.307, I.P.C. against the deceased. Ex.P19 is the first information prepared by P.W.16. He also seized the clothes M.Os.4 to 6 from the fourth accused. Since there was a cut injury on his head, he was sent to the Government Hospital, Sattur, for examination and treatment. 9. P.W.6, Civil Assistant Surgeon, Sattur, examined the fourth accused for certain injury said to have been caused on 4.10.1981 at about 4.30 P.M. due to assault with aruval by a known person. He found the following injury: An obliquely placed incised wound of six 5 x 1-1/2 cm x bone deep on the left parietal region of the scalp. X-Ray was taken; but there was no evidence of fracture. He was admitted in the male ward. P.W.6 is of the opinion that the injury could have been caused at the time and in the manner alleged and that it is simple in nature. Ex.P4 is the wound certificate issued by him. 10. P.W.16 caused the bloodstained articles to be sent to the Chemical Examiner through Court. Exs.P12 and P13 are the reports of the Chemical Examiner and the Serologist respectively. After completing the investigation, P.W.16 laid the charge-sheet against all the accused on 25.8.1982. He arrested accused 1 to 3 and 5 on 22.10. 1981 itself. On 20.8.1982 he referred the case given by the fourth accused as false. 11. When the accused were examined with reference to the incriminating piece of evidence under Sec.313 Code of Criminal Procedure, they totally denied the prosecution evidence. However, they would admit the relationship between them and the P.Ws. The fourth accused alone in his statement stated that the land of P.W.9 and the land of the fifth accused were adjacent lands and that the deceased removed the boundary stones. However, they would admit the relationship between them and the P.Ws. The fourth accused alone in his statement stated that the land of P.W.9 and the land of the fifth accused were adjacent lands and that the deceased removed the boundary stones. In respect of the same, there was quarrel between the fifth accused and the deceased and he asked the fifth accused to give a complaint against the deceased to the Police. The deceased who was standing there openly stated that he was the real accused against him. Two days later, when he was proceeding near the bus stand the deceased came running with aruval and cut him on his head by declaring that he would not allow him to leave. He struggled and snatched the aruval from him and cut him indiscriminately. No witness was examined on the side of the accused. 12. The learned trial Judge for the reasons assigned in his judgment convicted the fourth accused alone as stated supra while acquitting the rest of the accused. Hence the convicted fourth accused has preferred this appeal. 13. Learned counsel appearing for the appellant, Mr. A.A. Selvam, mainly submitted that the learned trial Judge having disbelieved the eye witnesses and the entire case of the prosecution erred in convicting the fourth accused on the basis of the report Ex.P18 given by him and his statement under Sec.313 Code of Criminal Procedure. The learned counsel would also submit that when a charge has been framed against this appellant and the other accused under Sec.302 read with 34, I.P.C., this accused cannot be convicted for the substantial charge under Sec.304, Part I, I.P.C. 14. On going through the judgment of the learned trial Judge, it is seen that the learned trial Judge in Para 14 of the judgment came to the conclusion that the motive put forward by the prosecution cannot definitely be said to be the motive for the occurrence in this case. According to the learned trial Judge, the boundary dispute is between the parties for about fifteen years and that the parties had been approaching the survey authorities and fixed the boundaries. It is also admitted that even two days prior to the occurrence, the fourth accused only advised the fifth accused to go to the police station and give a complaint. It is also admitted that even two days prior to the occurrence, the fourth accused only advised the fifth accused to go to the police station and give a complaint. As such the attack on the deceased on that day the bus stand cannot be the result of the boundary dispute between the fifth accused and P.W.9, the father of the deceased. 15. It is not the case of the prosecution that there was any enmity between the deceased and the fourth accused, except the fact that he is related to accused 1, 2 and 5. The boundary dispute is between P.W.9 and his son on the one hand and the fifth accused on the other hand. As such, the learned trial Judge, has rightly come to the conclusion that there is no sufficient motive for the commission of the offence by any of these accused and particularly this appellant. The next reason given by the learned Judge is that if really the accused are the real assailants and they wanted to do away with the deceased, they would not have chosen the place near the bus stand wherein there are a number of shops and habitation and there was frequency by many persons. 16. The learned trial Judge has also not accepted the evidence of P.Ws.1 to 3. P.W.1 is no other than the sister of the deceased. P.W.2 is his brother. P.W.3 is the husband’s brother of P.W.1. The independent witness P.W.7 was treated as hostile. The other independent witnesses, though cited, were not examined. The learned trial Judge disbelieved the evidence of P.Ws.1 to 3 on the ground that they could not have been present at the scene place. Further, they are admittedly closely related to the deceased. Their conduct also throws considerable doubt on their evidence. The learned trial Judge has dealt with the evidence of the eye witnesses in paras 17 to 19 of the judgment. The learned trial Judge has disbelieved the evidence of the occular witnesses also on the ground that the medical evidence adduced in this case does not support the version of these eye witnesses. P.W.54 Doctor who conducted autopsy in this case has stated that injury No.1 is an incised wound and if it had been caused by a velstick. It should have been a stab wound. P.W.54 Doctor who conducted autopsy in this case has stated that injury No.1 is an incised wound and if it had been caused by a velstick. It should have been a stab wound. He would have described it as a stab wound; but he noticed an incised wound. Similarly, if injury No.2 had been caused by a spike, he would have described it as punctured wound. According to P.W.5, if a weapon conical or cylindrical in shape and pointed at the end caused an injury, the injury will be having a circular or slit like opening. Above all, he has stated that injury Nos.2 and 4 could not have been caused by a weapon like kuthukambu. The learned trial Judge also stated that P.Ws.1 to 3 are only chance witnesses, while the persons who were having shops at the bus stand or the persons who were there were not examined and that the non-examination of the independent witnesses throws considerable doubt on the version of the prosecution. 17. The learned trial Judge also came to the conclusion that there is inordinate and unexplained delay in launching the complaint. According to the learned trial Judge, though the occurrence took place at about 4.30 P.M., the report is said to have been given at 6.30 p.m. at Sattur police station and it reached the Magistrate, whose house is situated at a distance of 150 feet from the police station, only at 10.30 P.M. In the instant case, since the entire members of the family have been arrayed as accused and since the prosecution has not given any explanation for the delay in sending the report to the Magistrate, it probabilises the version of the accused that they took time and foisted the case against the accused after due deliberation. The learned trial Judge also observed that the injury found on the fourth accused has not been explained by the prosecution. However, the learned trial Judge having disbelieved the entire case of the prosecution convicted the fourth accused only on the basis of the statement given under Ex.P18 to the police when he was arrested and on the basis of 313 statement. However, the learned trial Judge having disbelieved the entire case of the prosecution convicted the fourth accused only on the basis of the statement given under Ex.P18 to the police when he was arrested and on the basis of 313 statement. As regards the statement under Ex.P18 it is submitted by the learned counsel for the appellant that the said statement recorded after arrest of the fourth accused is hit by Sec.161 Code of Criminal Procedure and hence no reliance could be placed on the same. It is seen from the evidence of P.W.16 that he arrested the fourth accused on 5.10.1981 at 8.30 P.M. and that thereafter he examined him and he gave the statement Ex.P18. It is not the case of the prosecution that the fourth accused himself went to the police station and gave the report and then he was arrested or after recording the statement, he was arrested and as such, I find much force in the contention of the learned counsel for the appellant that Ex.P18 recorded from the fourth accused is hit by Sec.161 Code of Criminal Procedure. 18. It is again submitted by the learned counsel for the appellant Mr. A.A. Selvam that the statement made by the fourth accused under Sec.313, Code of Criminal Procedure setting up a plea that he is protected by the right of self-defence cannot be used against him for convicting him for the offence, especially when the prosecution case was disbelieved by the trial Judge. Only if the accused admits and makes a confession statement simplicitor in respect of the commission of the offence, then the statement can be taken into consideration, but not when he set up a plea of self-defence and in support of the same, he has made certain statements in respect of the attack on the deceased in the circumstances stated by him. In support of the same, he relied on the Bench decision of this Court report in S. Natesan, In re., 1976 L.W.(Crl.) 27, wherein Kailasam and Paul, JJ., had an occasion to consider a similar case arising under similar situation. In support of the same, he relied on the Bench decision of this Court report in S. Natesan, In re., 1976 L.W.(Crl.) 27, wherein Kailasam and Paul, JJ., had an occasion to consider a similar case arising under similar situation. In para 14 of the judgment it is observed as follows: "In Narain Singh v. The State of Punjab, 1963 M.L.J. (Crl.) 447, it has been held by the Supreme Court that if the accused person in his examination under Sec.342, Cr.P.C., confesses to the commission of the offence charged against him the Court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstances appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety and it is not open to the Court to dissect the statement and pick out a part of the statement which may be in criminative, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on record. If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation. Where a person accused of committing an offence sets up at his trial a plea that he is protected by one of the exceptions, general or special in the I.P.C. or any other law defining the offence the burden of proving the exception undoubtedly lies upon him. But this burden is only undertaken by the accused if the prosecution case establishes that in the absence of such a plea he would be guilty of the offence charged." In that case the accused was charged with the offence of murder bring armed with a stick. The evidence in support of the case was unreliable. The accused admitted that he had caused injuries to the deceased with a kirpan carried by him, but he explained that he caused the injuries when he was thrown down and the deceased was attempting to strangulate him. The evidence in support of the case was unreliable. The accused admitted that he had caused injuries to the deceased with a kirpan carried by him, but he explained that he caused the injuries when he was thrown down and the deceased was attempting to strangulate him. In these circumstances, the Supreme Court held that: "the plea of self-defence had to be considered as a composite plea and it was not open to the Court to investigate whether the accused could have reasonably apprehended such injury to himself as justified him in causing the death of his opponent. The prosecution case did not by reliable evidence establish affirmatively that the accused had done any act which rendered him liable for the offence of murder. His responsibility, if any, arose only out of the plea raised by him; if the plea amounted to a confession of guilt the Court could convict him relying upon the plea, but if it amounted to admission of facts and raised a plea of justification, the Court could not proceed to deal with the case as if the admission of facts which were not part of the prosecution case was true, and the evidence did not warrant the plea of justification." The Division Bench was of the opinion that the said decision would apply in all four to the facts of the case before them. In the above quoted case also, the learned Sessions Judge took that part of the appellant’s statement in which he had stated that he stabbed the deceased and dissected it from the other part of his statement in which he stated that he did so in the exercise of his right of private defence and then proceeded to consider the latter plea and held that the plea was not supported by the circumstances appearing in the evidence and proceeded to convict the appellant of the substantive offence of murder punishable under Sec.302, I.P.C., when he had been charged only with offences under Sec.302 read with Sec.34, I.P.C. and Sec.341, I.P.C. That he cannot do. Ultimately the Bench allowed the appeal. The ratio laid down in the above Bench decision, relying on the earlier Supreme Court decision in Narain Singh v. The State of Punjab, 1963 M.L.J.(Crl.) 447, is in all fours applicable to the facts of this case. In state of Orissa v. Chakradhar Sahu, 1983 Crl.L.J. 532. Ultimately the Bench allowed the appeal. The ratio laid down in the above Bench decision, relying on the earlier Supreme Court decision in Narain Singh v. The State of Punjab, 1963 M.L.J.(Crl.) 447, is in all fours applicable to the facts of this case. In state of Orissa v. Chakradhar Sahu, 1983 Crl.L.J. 532. The Division Bench of the Orissa High Court, relying on the above quoted decision of the Supreme Court in Narain Singh v. The State of Punjab, 1963 M.L.J.(Crl.) 447, held as follows: "In the absence of any reliable evidence in support of the prosecution case an accused cannot be held guilty by only using his admission that he had caused injuries to the deceased and leaving out of consideration the circumstances in which he is alleged to have caused injuries to the deceased. There is no doubt that an accused can be held guilty if during his examination under Sec.313, Cr.P.C., he confesses to the commission of the offence charged against him. But where the accused does not confess and seeks to explain his conduct pleading the right of self-defence he cannot be convicted on that plea alone." The above decision also supports the contention of the learned counsel for the appellant. In the instant case, the learned trial Judge having disbelieved the entire prosecution case, only acted on the statement made by the fourth accused setting the plea of self-defence, and he did not accept the entire statement but only acted on a part of the statement where he has stated that he cut the deceased, and holding that he exceeded the right of private defence since he had cut the deceased number of times, convicted him under Sec.304, Part I, I.P.C., though he was charged for the offence under Sec.302 read with Sec.34, I.P.C., along with the other accused. As pointed out in the above quoted decision, it is not open to the trial Judge to dissect the statement and pick out a part of the statement which may be in criminative and then to examine whether the explanation furnished by the accused is probable. The conviction of the appellant purely on the basis of the statement given by the fourth accused before him is not correct in view of the ratio laid down by Their Lordships of the Supreme Court and the Division Bench of this Court. The conviction of the appellant purely on the basis of the statement given by the fourth accused before him is not correct in view of the ratio laid down by Their Lordships of the Supreme Court and the Division Bench of this Court. As already observed, even the learned trial Judge has not accepted the evidence of the eye witnesses and completely disbelieved the case put forward by the prosecution in respect of the actual occurrence and acquitted the other accused who have been charged for the offence under Sec.302 read with Sec.34, I.P.C. The conviction of this appellant on the basis of the statement made by him under Sec.313, Code of Criminal Procedure is not sustainable and is liable to be set aside. 19. In the result, the appeal is allowed, the conviction and sentence awarded to the appellant are set aside and he is acquitted of the offence under Sec.304, Part I, Indian Penal Code.