Sellammal @ Pappayee, In re. v. . — 1991 DIGILAW 18 (MAD)

Judgment : 1. The appellants respectively are accused 1 and 3 in S.C.No.80 of 1985 on the file of the District and Sessions Court, Periyar District, Erode. 2. The brief facts are: (a) Accused 1 to 3 are the residents of Pappavalasu. Accused 1 is the wife of accused 2. Accused 3 is their son. One Kolandasami Gounder (since deceased) was the resident of Karukkampalayam, a neighbouring village. Accused 1 is his sister. P.W.1 is his wife. P.W.2 is the brother of P.W.1 The spouses, deceased and P.W.1, were also blessed with two daughters by name Poongodi and Damayanthi. (b) The village going by the name Ayapparappu is situate three miles away from Karukkampalayam. A thottam going by the name Andikadu, with an extent of 6 1/ 2 acres is situate in that village. Out of 6 1/ 2 acres, 4 1/ 2 acres belonged to three persons, namely, Pongiandi, Arandi and Chellandi. They created a mortgage over the said lands for Rs.30,000 in favour of P.W.1 and accused 2. The family of the deceased and accused, each contributed. Rs.15,000 for the said mortgage. Exs.P-1 to P-3 are mortgage deeds. Subsequently, the owners of those lands leased them out to the deceased under lease deeds, Exs.P-4 to P-6. There is a well in the said thottam. The lands were cultivated by the deceased. Subsequently accused 2 assigned the mortgages in favour of P.W.1 under Exs.P-9 to P-11. (c) Some 11 months prior to the concurrence, which happened on 24.4.1985, the family of the accused started demanding the share of the produce or its money value from those lands, to which course, the deceased and his family members were not amenable. Consequently, to mediate the dispute between the two families, a panchayat was held in the village. P.W.3 and others acted as panchayatdars. It was decided in the panchayat that the deceased should pay Rs. 15,000 to the family of the accused. The deceased expressed his inability to pay the amount immediately. P.W.3 advanced a sum of Rs.8,000 to the deceased on a mortgage, Ex.P-7. The said sum was paid by the deceased to the family of accused. He further executed a promissory note for the balance of Rs.7,000 in favour of accused 2 agreeing to pay the amount due under the promissory note before the 4th of Chithrai, 1985. (d) The deceased did not honour his commitment as promised. The said sum was paid by the deceased to the family of accused. He further executed a promissory note for the balance of Rs.7,000 in favour of accused 2 agreeing to pay the amount due under the promissory note before the 4th of Chithrai, 1985. (d) The deceased did not honour his commitment as promised. Consequently, accused 3 met P.W.3 a day prior to the occurrence and requested him to make the deceased to pay the balance amount. P.W.3 sent his son Durairaj to the house of the deceased for getting the balance amount due from him. The deceased appeared to have stated that he was hard-pressed for money and he would pay the interest by the end of Chithrai and the principal by the end of the year. Accused 3 was not satisfied with the reply given by the deceased. (e) On the afternoon of the day of the occurrence, the deceased was mending the fence on the southern side of the thottam. Such operation, he undertook with the aid of Kavai stick, M.O.2. P.Ws.1 and 2 were stated to be engaged in removing the heap of mud situate adjacent to the well and spreading the same in the adjoining field, which was lying fallow. For such an operation, they were having with them two baskets and a spade. (f) At 3 P.M. accused 3 came there’ and accosted for the return of the balance of the amount due from the deceased. The deceased expressed his inability to do so. Accused 3, on hearing such a reply, was stated to have issued threats of dire consequences, in case he was unable to pay the balance of amount immediately. The deceased got wild and remonstrated the conduct of accused 3 by stating that he was prepared to meet the challenge so posed. Accused 3 thereafter went away from the scene. (g) At 5 P.M. accused 1 to 3 came to the thottam. Accused 1 demanded payment of the amount from the deceased. A wordy altercation arose. During the course of wordy altercation, accused 1 was stated to have pushed the deceased. Immediately thereafter, the deceased started beating accused 1 and 2 with M.O.2 Kovaistick, which he was having in his hand. Accused 1 caught hold of the testicles of the deceased and pulled back with force. The deceased fell on the ground with his face upwards. During the course of wordy altercation, accused 1 was stated to have pushed the deceased. Immediately thereafter, the deceased started beating accused 1 and 2 with M.O.2 Kovaistick, which he was having in his hand. Accused 1 caught hold of the testicles of the deceased and pulled back with force. The deceased fell on the ground with his face upwards. Accused 2 mounted on the deceased and pressed his hands on his chest. At that time, accused 3 inflicted indiscriminate cuts on all over the body of the deceased with M.O.1 aruval. Fearing perilous consequences at the hands of accused 1 to 3, P.Ws.1 and 2 did not intervene and prevent the onslaught of attack on the deceased. Thereafter, accused 3 handed over M.O.I to accused 2 and ran away from there. Accused 1 and 2 also ran away from the scene in different directions. (h) ThenP.Ws.1 and 2 approached near the deceased and found him dead. P.W.1 leaving P.W.2 and his daughter Poongodi in the scene went to Oonjalur to give a report to the Village Administrative Officer. The VAO was not present there. Consequently, she went and reached Kodumudi Police Station at 9 P.M. She gave an oral complaint, which was reduced to writing by P.W.9, Sub-Inspector of Police in the printed form of FIR itself. Ex.P-12 is the report P.W.9 prepared express reports and sent the same to the concerned officials. (i) On receipt of the express F.I.R., P.W.10, Inspector of Police, reached the scene at 10.30 P.M. After inspecting the scene, he prepared Ex.P-17 observation mahazar. He also prepared a rough sketch of the scene, Ex.P-27. He seized M.O.2 KavaiStick, M.O.8 bloodstained earth, M.O.9 sample earth and M.O.10 bloodstained ragi crop under Ex.P-18 mahazar. Exs.P-17 and P-18 were attested by P.W.7, VAO, Kolathupalayam,. between 12 midnight and 4 A.M., he held inquest over the body of the deceased. Ex.P-26 is the inquest report During inquest, he examined P.Ws.1 and 2 and others. He caused photographs of the body to be taken by P.W.5 M.O.5 to 7 are the photographs and negatives. He despatched the body through P.W.6 along with the requisition Ex.P-13 for the purpose of autopsy. He searched for the accused and all of them were absconding. (j) P.W.4, Civil Assistant Surgeon, Government Hospital, Kodumudi, on receipt of Ex.P-13 requisition, conducted autopsy over the body of the deceased at 7.30 A.M. on 25.4.1985. He despatched the body through P.W.6 along with the requisition Ex.P-13 for the purpose of autopsy. He searched for the accused and all of them were absconding. (j) P.W.4, Civil Assistant Surgeon, Government Hospital, Kodumudi, on receipt of Ex.P-13 requisition, conducted autopsy over the body of the deceased at 7.30 A.M. on 25.4.1985. Ex.P-14 is the post-mortem certificate. He opined that all the injuries found on the person of the deceased could have been caused by a weapon like M.O.1 aruval. He further opined that external injury No.2 with the corresponding internal injury, namely, fracture of the skull is sufficient in the ordinary course of nature to cause the death. (k) On 26.4.1985, at 9.30 A.M. P.W.10 arrested accused 1 at Arampalayam bus stand in the presence of P.W.7. On interrogation, accused 1 was stated to have given a voluntary confession statement, the admissible portion of which is Ex.P-19. Pursuant to the confession so made, accused 1 took out and produced M.Os. 3 and 4, torn bits of saree kept concealed underneath a stone in the backyard of her house. They were seized under Ex.P-20 mahazar. (1)On the same day at 12 noon, at Kurangupallam, on the road from Arampalayam to Perumalpalayam, he arrested accused 2. On interrogation, he also gave a voluntary confession statement, the admissible portion of which is Ex.P-21. Accused 2 took P.W.10 and others to Andikadu and produced M.O.1 and M.O.11 bloodstained towel kept concealed underneath the hayrick, and the same were seized under mahazar, Ex.P-22. Exs.P-19 to P-22 were arrested by P.W.7. (m) Accused 1 and 2 were having injuries on their person. They were sent to the Government Hospital,Kodumudi for treatment. P.W.4 examined accused 1 on 26.4.1985 at 4.30 P.M. and gave her treatment for the injuries. Ex.P-15 is the copy of the accident register. Similarly, he also examined accused 2 at 4 P.M. and gave him treatment for the injuries. Ex.P-16 is the copy of the accident register. He opined that the injuries mentioned in Exs.P-15 and P-16 could have been caused by assault with a stick like M.O.2. (n) P.W.10 then sent the accused 1 and 2 to Court for remand. Accused 3 appeared to have surrendered before Court on 29.4.1985. (o) On 4.5.1985, P.W.10 sent Ex.P-23 requisition to the Additional Judicial Second Class Magistrate, Erode for sending the incriminating material objects to the Chemical Examiner for the purpose of analysis. (n) P.W.10 then sent the accused 1 and 2 to Court for remand. Accused 3 appeared to have surrendered before Court on 29.4.1985. (o) On 4.5.1985, P.W.10 sent Ex.P-23 requisition to the Additional Judicial Second Class Magistrate, Erode for sending the incriminating material objects to the Chemical Examiner for the purpose of analysis. P.W.8, the then Head clerk, Additional Judicial Second Class Magistrates Court,Erode, pursuant to the requisition so received by Court, as per the orders of learned Magistrate sent the incriminating articles to the Chemical Examiner under the original of Ex.P-24, office copy of the letter. Exs.P-25 to P-26 are the reports of Chemical Examiner and Serologist respectively (p) After completing the formalities of the investigation, P.W.10 laid a final report under Sec.173(2), Crl.P.C. before the Additional Judicial Second Class Magistrate, Erode on 30.5.1985 against accused 1 to 3 for the alleged offence under Sec.302 read with Sec.34, I.P.C 3. Upon committal, learned Sessions Judge framed a charge against accused 1 to 3 for the offence under Sec.302 read with Sec.34, I.P.C. 4. The accused, when questioned as respects the charge framed against them, denied the same and claimed to be tried. 5. The prosecution, in proof of its case, examined P.Ws.1 to 10, filed Exs.P-1 to P-28 and marked M.Os.1 to 11. 6. The accused, when questioned as respects the incriminating circumstances appearing in evidence against them, under Sec.313, Crl.P.C, denied their complicity in the crime. Accused 1 also field a statement in writing specifically pleading the manner of occurrence. The statement so filed would reveal that the occurrence did not at all take place as projected by P.Ws.1 and 2. They were not at all present at the scene. The presence and participation of accused 3 had been denied. Accused 1 and 2 alone participated in the occurrence. There was a wordy altercation between the deceased and accused 1. In such process, accused 1 gave a push to the deceased. The deceased, in turn mounted an attack on accused 1 and 2 with M.O.2 Kavaistick he was having in his hand. Accused 1 caught hold of the testicles of the deceased and pulled them out. Accused 2 taking M.O.1 aruval, which was lying there, mounted an attack on the deceased, solely with the object of saving themselves from the perilous consequences they were facing at the hands of the deceased. Accused 1 caught hold of the testicles of the deceased and pulled them out. Accused 2 taking M.O.1 aruval, which was lying there, mounted an attack on the deceased, solely with the object of saving themselves from the perilous consequences they were facing at the hands of the deceased. The accused did not choose to examine any witness on their behalf. But they marked Exs.D.1 to D.4 the contradictions of P.Ws.1 and 2 from their statements recorded under Sec 164, Crl.P.C. 7. Learned Sessions Judge, on consideration of the materials placed before him and on hearing the arguments of learned Public Prosecutor and learned counsel for the accused, found accused 2 not guilty of the offence under Sec.302 read with Sec.34, I.P.C. and acquitted him. He also found accused 1 and 3 not guilty under Sec.302 read with Sec.34, I.P.C, but instead, he found them guilty under Sec.304, Part II, I.P.C., convicted them there under and sentenced them each to rigorous imprisonment for four years. The present appeal is against the said conviction and sentence. 8. Learned counsel appearing for the appellants would urge for consideration the following points: “(1) The preponderance of probabilities to be culled out from the evidence available on record would point out that P.Ws.1 and 2 could not have been present in the scene and had the fortuitous opportunity of witnessing the occurrence and further, the occurrence, as projected by them, could not at all have happened; (2) The occurrence, if at all, could have happened in the manner as suggested by the defence and if the Court comes to such a conclusion, the appellants would be enured of the benefit of right of private defence of person and consequently the conviction and sentence as imposed on them by the Court below are not sustainable. 9. Learned Government Advocate would however repel such submissions. 10. There is no manner of doubt whatever that the deceased died of homicidal violence, as revealed by the medical testimony, in the shape of the doctor P.W.4 coupled with Ex.P-14 post-mortem certificate. The moot question posed for consideration in this case is as to whether the occurrence took place as per the version projected by P.Ws.1 and 2 or in the manner as suggested by the defence. 11. The moot question posed for consideration in this case is as to whether the occurrence took place as per the version projected by P.Ws.1 and 2 or in the manner as suggested by the defence. 11. For the manner of occurrence, the case of the prosecution, as already indicated, is solely hinging on the ocular testimony of P.Ws.1 and 2. If there are circumstances available on record doubting the presence of P.Ws.1 and 2 in the scene of occurrence, then naturally the Court has to give its seal of approval to the defence version as respects the manner of occurrence, when especially the specific case of the defence is right of private defence of person. Pertinent it is at this juncture to understand the burden that is cast on the prosecution to prove its case as opposed to the burden that is cast on the defence in proof of their version. Irrespective of the defence of the accused, it is always for the prosecution to discharge its onus of proving its case beyond any shadow of doubt. So far as the defence is concerned, it is sufficient for it to make it appear to Court that all is not well with the case of the prosecution and that the version as put forward by the defence is the most probable way by which the occurrence could have taken place. In the backdrop and setting of the principle as evolved, let me approach the facts and circumstances of the case to arrive at a just conclusion. 12. It is not at all the case of the prosecution that P.Ws.1 and 2 were working in the field on the day of occurrence on and from the morning. It is their version that after taking lunch, they went to the field and they got themselves engaged in removing the heap of earth lying adjacent to the well and spreading over in the adjoining fallow field with the aid of two baskets and a spade. There is no clear evidence at what point of time, the deceased went to the field for mending the fence on the southern side of the thottam. The evidence available would simply point out that at the time of the occurrence, the deceased was mending the fence with M.O.1 Kavaistick. There is no clear evidence at what point of time, the deceased went to the field for mending the fence on the southern side of the thottam. The evidence available would simply point out that at the time of the occurrence, the deceased was mending the fence with M.O.1 Kavaistick. The version, as projected by P.Ws.1 and 2 during the course of investigation was that they went to the field for the purpose of removing the fallen mud from the well and they were so working in the field and not that they went to the field for removing the heap of earth lying near the well and spreading the same in the adjoining fallow field as projected by them during trial. The attention of P.Ws.1 and 2 had been drawn on this aspect of the matter and a contradiction had been elicited and had been duly proved through the Investigating Officer, P.W.10. P.Ws.1 and 2 could not have engaged in the operation of removing the fallen mud from the well on the day of the occurrence, inasmuch as the well was admittedly full of water. Obviously realising this insurmountable difficulty in explaining such a situation, the prosecution thought fit to make P.Ws.1 and 2 say that they were engaged in the act of removing the earth heaped up near the well and spreading the same in the nearby fallow field. But for such an operation, the presence of P.Ws.1 and 2 in the field at or about the time of occurrence could not at all have been explained by the prosecution. 13. The matter did not stop there with the eliciting of such a contradiction and proof of the same. The defence was able to elicit from the Investigating Officer, P.W.10 that he did not mention the factum of heaping of earth near the well and removal and spreading of the same in the adjoining fallow field on the day of occurrence both in the observation mahazar Ex.P-17 as well as in the rough sketch, Ex.P-27. It was also further elicited that he did not mention the presence of two baskets and a spade lying there in both those documents. This cannot be brushed aside as a trivial matter, in the circumstances of the case. It was also further elicited that he did not mention the presence of two baskets and a spade lying there in both those documents. This cannot be brushed aside as a trivial matter, in the circumstances of the case. It is indeed a disturbing factor, which would point out that the presence of P.Ws.1 and 2 in the scene on the day was rather doubtful. This aspect of the matter has to be taken note of while assessing the credibility of the version as projected by P.Ws.1 and 2, as respects their presence in the scene and the manner of occurrence. 14. There is one more signal factor of some importance, which is taken into account, would point out the version as presented by P.Ws.1 and 2 as regards the manner of occurrence as rather doubtful, Accused 1 was stated to have given an initial push to the deceased. Immediately thereafter, the deceased was stated to have mounted an onslaught of attack on accused 1 and 2 by means of M.O.2 Kavaistick which he was having in his hand then. Accused 1 was stated to have caught hold of the testicles of the deceased and made a violent pull with the result the testicles got snapped with the peeling of the skin of the penis. Thereafter, accused 2 was stated to have perched on the chest of the deceased and held him to the ground by his hands having been caught hold of and pressed against his chest. It is only at that juncture, accused 3 was stated to have inflicted indiscriminate cuts causing as many injuries as 23 in number on the person of the deceased, as revealed by the medical testimony available on record. Injury Nos. 14 to 20 and Injury Nos.21 to 23, as described in Ex.P-14 post-mortem certificate are respectively on the right and left hands of the deceased. The medical opinion also reflects that the injuries could have been caused while warding off the cuts by both the hands. If really the deceased was in a lying posture with his face upwards and accused 2 was sitting on his chest with his hands being caught hold of and pressed against his chest, it is beyond ones comprehension as to how could it be possible for the deceased to have sustained the cut injuries on both of his hands. If really the deceased was in a lying posture with his face upwards and accused 2 was sitting on his chest with his hands being caught hold of and pressed against his chest, it is beyond ones comprehension as to how could it be possible for the deceased to have sustained the cut injuries on both of his hands. As such, the version as projected by P.Ws.1 and 2 is not free from doubt. 15. There is one more disturbing factor. If really P.Ws.1 and .2 were available in the scene at or about the time of occurrence, they could have gone to the rescue of the deceased while the alleged onslaught of attack was made by accused 1 to 3. The accused are not strangers to them and they are all their relations. Initially there was only a wordy altercation. Such a wordy altercation could have been prevented by the timely intervention of P.Ws.1 and 2. It is not the evidence of P.Ws.1 and 2 that they made any effort to avert the untoward incident at the initial stage. They would simply state that they were silent spectators on the scene. The reason they would give for their noninterference was that they were threatened with dire consequences. This sort of an explanation cannot at all be countenanced, in the circumstances of the case. P.W.1 is the better-half of the deceased and P. W.2, as already indicated, is none-else than the brother of P.W.1. Even one can understand the non-interference of P. W.2, obviously daunted by the instinct of self-preservation. But the passive conduct of P.W.1, the better half of the deceased, in such circumstances, cannot at all be countenanced. 16. There is one another disturbing feature. If really P.W.2 was present in the scene and witnessed the occurrence, he could have gone for reporting the matter either to the VAO or to the police, allowing P.W.1 and her daughter to remain in the scene of occurrence near the body. For a lady like P.W.1 leaving the male, P.W.2 in the scene and going to report the matter to the authorities concerned during night hours is quite improbable. 17. On the face of the disturbing features as pointed out, I am of the view that P.Ws.1 and 2 could not at all have been present at the scene to have had the fortuitous opportunity of witnessing the occurrence. 18. 17. On the face of the disturbing features as pointed out, I am of the view that P.Ws.1 and 2 could not at all have been present at the scene to have had the fortuitous opportunity of witnessing the occurrence. 18. Now let me proceed to consider the version as projected by the defence. Their case, right from the beginning as revealed by the trend of cross-examination to the witnesses, is right of private defence of person of accused 1 and 2 and accused 3 was not at all present and participated in the occurrence. It is the consistent case of the defence that accused 1 caught hold of the testicles of the deceased and made a violent pull when there was an onslaught of attack on her by the deceased with M.O.2 Kavai stick. The attack by the deceased did not only stop with accused 1 but also he started attacking accused 2, a man aged 70 years. It is but natural for a person like accused 2, despite advancing years to go to the rescue of his beloved wife, accused 1, when she was facing perilous consequences of herself having been attacked by the deceased with M.O.2 Kavaistick. It is only at this juncture, accused 2 was reported to have mounted an attack with M.O.1 aruval, which was lying there. It is quite probable that M.O.1 aruval could have been available in the scene, when especially the deceased was engaged in mending operation of the fence. For such an operation, an aruval like M.O.1 and a stick like M.O.2 were absolutely necessary. The presence of accused 1 and 2 in the scene is but natural in the circumstances of the case. They went there for making a lawful demand of the money due to them by the deceased. During the panchayat the deceased had made a commitment to make the payment before the 4th of Chithirai, 1985. He did not honour his commitment at all. Therefore it was but natural for accused 1 and 2 to have gone to the field where the deceased was working to make demand of the amount due to them and the occurrence took place only in such a context. He did not honour his commitment at all. Therefore it was but natural for accused 1 and 2 to have gone to the field where the deceased was working to make demand of the amount due to them and the occurrence took place only in such a context. In these circumstances, it cannot be stated that the defence did not at all satisfactorily discharge the onus on their part to make it appear to the Court that the occurrence took place in the manner as suggested by them. 19. I may also point out that the hands of concoction, in the sense of twisting events, had been at work right from the beginning in this case and this would be revealed by the materials available on record respecting the arrest, confession and consequent recovery of the material objects, at the instance of accused 1 and 2. It is the case of the prosecution, as already indicated, that both the accused 1 and 2 were arrested on 26.4.1985 and they were stated to have given a voluntary confession under Sec.27 of the Indian Evidence Act, the consequence of which is certain recoveries were made. If we turn to the evidence of P.W.1, there is a candid admission by her that accused 1 and 2 were taken into custody by the police even on the night of the day of the occurrence. 20. In view of what has been stated above, it goes without saying that the version, as projected by the prosecution, cannot at all be accepted and the version, as projected by the defence, has to be necessarily countenanced, the consequence of which is that the conviction and sentence, as imposed upon the appellants/ accused 1 and 3 for the offence under Sec.304, Part II, I.P.C. are not sustainable. Accordingly, I find them not guilty of the same. 21. In the result, the appeal is allowed; the conviction and sentence imposed on the appellants/ accused 1 and 3 are set aside and they are acquitted.