Judgment : The accused in S.C.No.79 of 1990 on the file of the Principal Sessions Judge, Erode, has preferred this appeal. 2. The Inspector of Police, Erode Town has filed a chargesheet against the accused alleging that on 5.1.1988 at 00.30 Hrs. in the burial ground on the banks of River Cauvery when Sundaram and Swaminathan tried to molest one Dhanapackiyam, the kept mistress of the accused, the accused stabbed Sundaram on his chest and Swaminathan on his neck with a Pen knife and committed their murder and thereby committed offences under Sec.302, I.P.C. (2 counts). 3. The Judicial Magistrate I, Erode, committed the case to the Court of Sessions at Erode under Sec.209(a), Crl.P.C. Learned Sessions Judge, after going through the records framed charges under Sec.302, I.P.C. (2 counts) against the accused and explained to him in tamil and the accused pleaded not guilty to the said charges. 4. The relevant averments found in the evidence of prosecution witnesses are as follows: (a) The accused Ramakrishnan was married to one Ayyammal and had three children through her. Dhanapackiyam was married to one Murugesan and she got three children through her husband. After the death of Murugesan, Dhanapackiyam and the accused Ramakrishnan lived together as husband and wife. Dhanapackiyam in her evidence has stated that the accused married her. P.W.1 Raman, Sundaram and Swaminathan were friends. On 4.1.1988 they had drinks and after taking their tiffen in a hotel, they went to a cinema show and as the show had already begun, once again they had their dinner and went to the house of Sundaram which is on the banks of river Cauvery near the bridge. All the three were talking there till mid-night. Some coconut tree were there on the poromboke land 150 ft. away from the house of Sundaram and Sundaram suggested others that they could drink tender coconut water by committing theft of coconuts from those trees. All the three went there and they plucked coconuts and were trying to break the coconuts. During the mid-night, the accused Ramakrishnan and his kept mistrees P.W.2 Dhanapackiyam went to the graveyard on the banks of river Cauvery to bury an Egg, Copper sheet and other materials with a view to satisfy evil spirits. All the three went there and they plucked coconuts and were trying to break the coconuts. During the mid-night, the accused Ramakrishnan and his kept mistrees P.W.2 Dhanapackiyam went to the graveyard on the banks of river Cauvery to bury an Egg, Copper sheet and other materials with a view to satisfy evil spirits. After burying those things, when the accused Ramakrishnan and P.W.2 Dhanapackiyam were returning in a cycle M.O.1, the three men who were breaking coconuts saw them, and went nearer. P.W.1, Sundaram and Swaminathan obstructed and questioned them as to whether Dhanapackiyam was a prostitute. The accused told them that Dhanapackiyam was his wife. Not believing the words of the accused, those three men asked her to show her “Thali”. As Dhanapackiyam was not wearing a “Thali”, when they questioned again, the accused told the purpose for which they visited the graveyard during mid-night. Once again, not believing the words of accused, those three men accompanied them to the place where they had buried the egg, copper sheet by digging the sand and showed them. Sundaram forcibly touched the egg and it fell down and broke into pieces. Sundaram told Swaminathan that Dhanapackiyam was a prostitute and asked him to take her away. The accused fell on the feet of Sundaram and begged him to leave them. P.W.1 also advised Sundaram to leave them. Sundaram shouted at P.W.1 and told Swaminathan to take Dhanapackiyam with him. Swaminathan tried to take Dhanapackiyam with him at that time. The accused and Dhanapackiyam begged them saying that Dhanapackiyam is like their mother and not to cause any harm to her. Sundaram and Swaminathan told them that even if P.W.1 Raman was not willing to have sexual intercourse with her, they would not leave her. P.W.1 tried to open the gate of graveyard and Sundaram and Swaminathan had prevented him from doing so. Sundaram and Swaminathan embraced Dhanapackiyam and Sundaram removed her saree. Sundaram and Swaminathan unbuttored her jacket and squeezed her breast. Dhanapackiyam cried with pain. However, Sundaram and Swaminathan tried to rape Dhanapackiyam. At that time the accused who was having a pen knife with him, stabbed Sundaram on his left Plank. Sundaram left Dhanapackiyam, however, Swaminathan continued to embrace Dhanapackiyam and the accused stabbed Swaminathan on his neck. On seeing that P.W.1 Raman ran away from there. The accused and P.W.2 Dhanapackiyam also ran away from there. At that time the accused who was having a pen knife with him, stabbed Sundaram on his left Plank. Sundaram left Dhanapackiyam, however, Swaminathan continued to embrace Dhanapackiyam and the accused stabbed Swaminathan on his neck. On seeing that P.W.1 Raman ran away from there. The accused and P.W.2 Dhanapackiyam also ran away from there. Sundaram fell near a bush and died. Swaminathan fell near the entrance of the door in the graveyard and died. On 5.1.1988 in the morning, Swaminathans younger sister by name Pushpa was searching for her brother and she asked one Arumugham as to whether he had seen Swaminathane Arumugham went to the house of P.W.1 at about 8.30 a.m. and asked him about the whereabouts of Swaminathan. P.W.1 narrated the entire occurrence to Arumugham who advised him to go to Police Station. P.W.1 and Arumugham went to the Police Station at Karungalpalayam. (b) P.W.10 Ponnuswamy the then Sub-Inspector of Police, Karungalpalayam Police Station was on duty on 5.1.88 at 12.00 noon when Arumugham and P.W.1 Raman went there, P.W.1 narrated the entire occurrence and P.W.10 recorded the same, readover and obtained his signature. He registered a case in Crime No.6 of 1988 under Sec.302, I.P.C. and prepared a printed First Information Report, Ex.P-13. He sent the original First Information Report to the Judicial Class II Magistrate No.1, Erode, and the copies to concerned Officials under Express Tapal. He also contacted the Inspector of Police over phone and informed him of the occurrence. P.W.12 Mohanraj, the then Inspector of Police, went to Karungalpalayam Police Station, received the copy of the First Information Report and reached the place of occurrence at 01.30 p.m. He found the dead body of Swaminathan two feet away from the room of the graveyard watchman and about 75 feet, away near the compound wall, the dead body of Sundaram. He found M.O.1 cycle about fifteen feet, away from there. He also found a small iron rod, the broken egg, copper sheet, a lime cut into two pieces and Kumkum affixed on it and prepared a Mahazar Ex.P-8 in the presence of P.W.9 and one Raman. He seized M.Os.13 to 17 under a over of Mahazar Ex.P-12 duly signed by P.W.9 and one Raman. The Inspector of Police drew a rough sketch Ex.P-18. He seized M.Os.13 to 17 under a over of Mahazar Ex.P-12 duly signed by P.W.9 and one Raman. The Inspector of Police drew a rough sketch Ex.P-18. He conducted the inquest on the body of Swaminathan and prepared the report Ex.P-19 and on the body of Sundaram prepared Ex.P-20. He handed over the bodies to P.W.8, Constable Raman attached to Karungalpalayam Police Station who produced them to the Doctor along with the requisition Ex.P-2. (c) P.W.6 Dr.Sathyawathi was the Assistant Surgeon, Government Headquarters Hospital, Erode, and on 6.1.1988 at about 6.00 a.m., she conducted the post mortem examination on the body of Swaminathan and found the following external injuries: One incised stab wound transverse about 2” in length l/8th of an inch in width, directed towards the thorax, below the head bone. On exploration of the wound, there was cut of the both the carotid arteries and other vessels, trachea and oeophagus. No other injuries in visceral organs in the Abodmen. Congested, nor mal in size. No other injuries. P.W.6 was of the opinion that the deceased appeared to have died of alcoholism with shock due to stab injury involving trachea, carotid arterial cut and esophageal injury about 24 to 36 hours prior to autopsy. Ex.P-4 is the certificate issued by her. (d) P.W.6 conducted the post mortem on the body of Sundaram at 7.00 a.m. on 6.1.1988 P.W.6 found the following injuries: (1) Stab injury about 2” × 1.08” extending in an upward direction from the left hypochondrium just below the ribs. On exploration, Thorax - left side pleural cavity and pericardial cavity filled with blood. Heart: Stab injury - incised wound about 2” × 1/8” over the left side heart entering into right ventricle. An incised would about 2” × 1/8” over left leaf of the diaphragm. On the basis of the Chemical Examiners Report, P.W.6 was of the opinion that the deceased would appear to have died of Ethyl Alcoholism and shock due to stab injury involving vital organs about 32 to 40 hours prior to autopsy. Ex.P-5 is the post mortem Certificate. The Chemical Examiners Report in respect of the viscera of Sundaram is Ex.P-6. (e) P.W.12 examined the witnesses and recorded their statements. At about 8.30 p.m. he seized Cycle M.O.1 under a cover of mahazar Ex.P-1 in the presence of P.W.9 and Raman. Ex.P-5 is the post mortem Certificate. The Chemical Examiners Report in respect of the viscera of Sundaram is Ex.P-6. (e) P.W.12 examined the witnesses and recorded their statements. At about 8.30 p.m. he seized Cycle M.O.1 under a cover of mahazar Ex.P-1 in the presence of P.W.9 and Raman. He also seized M.Os.14 to 17 under a cover of Mahazar Ex.P-12 duly signed by P.W.9 and Raman. P.W.12 arrested the accused at 11.00 P.M. while the accused was in this house, brought him to the police station and sent him for Judicial remand on 6.1.1988, P.W.12 examined P.Ws.2, 3, 8 and 9 and recorded their statements. P.W.12 made arrangements to record the statements of witnesses under Sec.164, Crl.P.C. P.W.12 sent Ex.P-14 requisition to the Judicial Magistrate I, Erode, for sending the seized articles for chemical examination. f) P.W.11 Pattabiraman was the Head Clerk attached to the Judicial Magistrate I Court, Erode. On receipt of Ex.P-14, the learned Judicial Magistrate had sent M.Os.2, 4, 6 and 9 to 13 under a covering letter, Ex.P-15. The chemical examiners report is Ex.P-16. The Serologists Report is Ex.P-17. (g) The Inspector of Police continued the investigation and on 13.10.1988 he examined P.W.6 and recorded his statement. On the same day, he concluded the investigation and laid charge sheet against the accused for offences under Sec.302, I.P.C. (2 counts). On 12.9.1990, the Inspector of Police who succeeded him filed an amended chargesheet. (h) When the accused was questioned regarding the incriminating circumstances found in the evidence of the prosecution witnesses, he denied the same. The accused did not examine any witness on his side. (i) Learned Principal Sessions Judge, Erode, found the accused guilty under Sec.304 (Part II), I.P.C. (2 counts) convicted and sentenced him to undergo rigorous imprisonment for seven years under each count and the sentences to run concurrently. Aggrieved by the said conviction and sentence, the accused has preferred this appeal. (j) The point for determination in this appeal is, whether the accused is liable for offence under Sec.304 (Part II), I.P.C. (2 counts)e (k) The appellant Ramakrishnan married one Ayyammal and they had three children. P.W.2 Dhanapackiyam was married to one Murugesan and got three children through him. After the death of her husband, Dhanapackiyam fell in love with the appellant and they got married in a temple and lived as husband and wife. P.W.2 Dhanapackiyam was married to one Murugesan and got three children through him. After the death of her husband, Dhanapackiyam fell in love with the appellant and they got married in a temple and lived as husband and wife. P.W.1 Raman, the deceased Sundaram and Swaminathan were friends. On 4.1.1988, all the three gathered to witness a cinema show and as the show had already begun, they went to a hotel, took tiffin, consumed liquor and thereafter went to the house of Sundaram which was on the banks of river Cauvery near the bridge. All the three were talking together till midnight and on the early hours of 5.1.1988 Sundaram invited the other friends to commit theft of coconuts from the trees found on the Poromboke land. After plucking coconuts, when they were trying to drink tender coconut water, they saw a man and a woman riding on a cycle. P.W.2 Dhanapackiyam and her husband, the appellant Ramakrishnan, were going in the cycle (M.O.1) to bury egg, Copper sheet, lime, etc. in the graveyard in order to satisfy evil spirits. They buried those things inside the graveyard and while going back to their house, P.W.1 Raman and his friends Sundaram and Swaminathan intercepted them and Sundaram asked the accused whether Dhanapackiyam was a prostitute. When the appellant told them that she is his wife, Sundaram asked them to show the ‘Thali’. As Dhanapackiyam was not wearing any Thali, Sundaram and Swaminathan felt that she was only a prostitute and tried to molest her. When the appellant and P.W.2 told them, the purpose of their visit and took them to the place where they buried egg, copper sheet, etc. and showed them the egg and other things by removing them from the sand, Sundaram forcibly touched the egg and it fell down and broken into pieces. However, Sundaram and Swaminathan were not willing to leave Dhanapackiyam and they tried to have sexual intercourse with her. The appellant and Dhanapackiyam fell at their feet and told them to leave, and not to spoil Dhanapackiyam. However, Sundaram and Swaminathan told them that they would leave Dhanapackiyam only after having sexual intercourse with her. Dhanapackiyam went to the extent to telling them that as she was like her mother, not to cause any harm to her virtue. P.W.1 Raman asked his friends not to cause any harm to Dhanapackiyam. However, Sundaram and Swaminathan told them that they would leave Dhanapackiyam only after having sexual intercourse with her. Dhanapackiyam went to the extent to telling them that as she was like her mother, not to cause any harm to her virtue. P.W.1 Raman asked his friends not to cause any harm to Dhanapackiyam. However, Sundaram shouted at P.W.1 and asked Swaminathan to take Dhanapackiyam separately. Swaminathan caught hold of Dhanapackiyam, removed her saree, unfolded her jacket and squeezed her breast, Sundaram and Swaminathan tried to embrace her. When Sundaram tried to have sexual intercourse with Dhanapackiyam, the appellant stabbed on left plank below the ribs and Sundaram fell down. When Swaminathan also tried to have sexual intercourse with Dhanapackiyam, the appellant stabbed him on his neck and Swaminathan also fell down. The appellant and Dhanapackiyam ran away from there. P.W.1 who hid himself near a bush, came out and found both Sundaram and Swaminathan dead. 5. It was strenuously argued on the side of the appellant that he had acted in self-defence and the trial court want wrong in convicting him for offences under Sec.304 (Part II), I.P.C. (2 counts). It is the case of the appellant that he had acted in self-defence. Sec.96, I.P.C. says “Nothing is in offence which is done in the exercise of the right of private defence.” Sec. 100, I.P.C. says “When the right of private defence of the body extends to causing death. The right of private defence of body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: Thirdly -An assault with the intention of committing rape.” In Yogendra Morarji v. The State of Gujarat Yogendra Morarji v. The State of Gujarat , A.I.R. 1980 S.C. 660 at 666 the Apex Court held: “….The Code excepts from the operation of its penal clauses large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations. The most salient of them concerned the defence of body are as under: Firstly, there is no right of private defence against an act which is not in itself an offence under the Code; Secondly, the right commences as soon as and not before a reasonable apprehension of danger to the body arises from, an attempt or threat to commit some offence although the offence may not have been committed and it is conterminous with the duration of such apprehension; Thirdly, it is a defensive and not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm that it is necessary to inflict for the purpose of the defence; Fourthly, the right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Sec.100. Fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailant; Sixthly, the right being, in essence, a defensive right, does not accrue and avail where there is “time to have recourse to the protection of the public authorities.” In the said decision, the Apex Court has stated clearly the principles of right of private defence and to what extent it should be used. The right of private defence is available as soon as a reasonable apprehension of danger to the body arises, that in no case the right extends to the inflicting of more harm than it is necessary, that the right extends to the killing of the actual or potential assailant when there was a reasonable and imminent apprehension of any crime enumerated in the six clauses of Sec.100. Clause 3 of Sec.100 says “An assault with the intention of committing rape.” If there are sufficient materials on record to show that there was an assault with the intention of committing rape and the accused was within his limit of private defence then it has to be held that the accused was not guilty of the offence. 6. When perusing the evidence available on record, it is clear that P.Ws.1 and 2 had witnessed the occurrence. 6. When perusing the evidence available on record, it is clear that P.Ws.1 and 2 had witnessed the occurrence. P.W.1 was one of the associate of the deceased Sundaram and Swaminathan and he had no interest to save the accused who has committed the murder of his two friends. The evidence of P.W.2 also cannot be thrown out entirely, on the ground that she was the victim of the sexual assault and that as wife of the appellant she was interested in him. That part of her evidence which stands as corroboration to the evidence of P.W.1 can be taken into consideration. P.W.1 in his cross-examination has clearly stated that Sundaram asked Swaminathan to take Dhanapackiyam in order to commit rape on her. Swaminathan embraced Dhanapackiyam and squeezed her breast. At that time, the appellant fell on the feet of Sundaram and asked him to leave Dhanapackiyam, but Sundaram refused to leave Dhanapackiyam and said that they will leave only after having sexual intercourse with her by all the three. P.W.1 further stated that when once again Swaminathan and Sundaram embraced Dhanapackiyam, the appellant fell on the feet of both and requested them to leave Dhanapackiyam taking her as a Sister, but Sundaram and Swaminathan squeezed her breast and that Dhanapackiyam cried in pain. P.W.1 further added that Swaminathan untied her jacket and squeezed her breast, compelled and spoiled Dhanapackiyam. From the evidence of P.W.1, who was none other than a close friends of other two deceased, it is clear that Sundaram and Swaminathan behaved inhumanly with Dhanapackiyam. It is not very much relevant as to whether Dhanapackiyam was married to the appellant or she was only a kept mistress. Though the learned Sessions Judge had given much importance and has come to the conclusion that Dhanapackiyam was only a kept mistress, such a decision is irrelevant in the circumstances of the case. Sec. 97 says “Right of private defence of the body and of property: Every person has a right, subject to the restrictions contained in Sec.99 to defend- First:His own body, and the body of any other person against any offence affecting the human body.” As per the said section the appellant had the right of private defence on the body of Dhanapackiyam who was facing the assault by the deceased with the intention of committing rape on her. Even if Dhanapackiyam was only a kept mistress of the appellant when the deceased persons had misbehaved with her in such a manner, no person having decency and human sympathy will keep quiet in such circumstance. The deceased have exceeded all limits of decency and they have conducted themselves in most inhuman way. P.W.1 has admitted in the cross-examination that Swaminathan compelled Dhanapackiyam and spoiled her. P.W.2 Dhanapackiyam has stated the way in which the deceased Sundaram and Swaminathan assaulted her sexually. She has corroborated the evidence of P.W.1 in all the relevant aspects. So this case squarely falls under Clause (3) of Sec.100, I.P.C. Therefore, the learned Trial Judge was wrong in coming to the conclusion that the appellant had exceeded his right to private defence. In Yeshwant Rao v. State of Madhya Pradesh Yeshwant Rao v. State of Madhya Pradesh , 1992 Crl.L.J. 2779 the Apex Court held, “….It appears to us that it is a case where the right of private defence arises and the case is fully covered by Sec.96, 97 read with Sec.100 of the Indian Penal Code. Whether it was a case of sexual intercourse with consent or without consent the fact remains that recording to the case of the prosecution Chhaya was of 15 years of age and, therefore, the act of Lakhan Singh deceased, would amount to rape within the meaning of Sec.375, clause (6) of the Indian Penal Code…..The fact remains that the right of private defence is extendable to the facts of the present case when the daughter of the appellant was being sexually molested. It appears that this part of the case of the appellant was not brought to the notice of the High Court. The judgment of the High Court mainly deals with the prosecution case only. The right of private defence is fully applicable to the facts of the present case.” 7. In the result, appeal is allowed, the appellant is not found guilty under Sec.304 (Part II), I.P.C. (counts) and is acquitted of all the charges and his bail bond shall stand cancelled.