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2005 DIGILAW 452 (MAD)

Swamikkannu v. State, rep. by Inspector of Police

2005-03-14

A.KULASEKARAN, N.DHINAKAR

body2005
Judgment : N. Dhinakar, J. 1. The appellants, five in number, were arrayed as A-1 to A-5 before the learned I Additional District Sessions Judge- cum -Chief Judicial Magistrate, Krishnagiri, Dharmapuri District, in S.C. No. 151 of 1993. 2. Appellants 1 to 5 were charged under Section 147, I.P.C. and appellants 2 and 4 were charged under Section 148, I.P.C. The learned trial Judge, while finding appellants 1 to 5 guilty under Section 147, I.P.C. and sentencing each one of them to one year simple imprisonment found the second appe1lant a1one gui1ty under Section 148, I.P.C. under charge No. 2, for which, he was sentenced to 18 months simple imprisonment. Appellants 2 to 5 were charged under Section 341, I.P.C. for wrongfully restraining P.W.1. Pandurangan, and the first appe11ant was charged under Section 341 read with 149, I.P.C. The trial Judge, while finding appellants 2, 3 and 5 guilty under Section 341, I.P.C., sentenced each one of them to two weeks simple imprisonment, while he acquitted the first appellant under Section 341 read with 149, I.P.C. The fourth appellant was charged under Section 324, I.P.C. for causing injuries to P.W.1 and the first appellant was found guilty under Section 324 read with 109, I.P.C. for abetting the fourth appellant to cause injury on P.W.1. The trial Judge acquitted both appellants 1 and 4 under the above two charges. He also acquitted appellants 2, 3 and 5, who were charged under Section 324 read with 149, I.P.C., as well as acquitted appellants 2, 3 and 5 under Section 323 read with 34, I.P.C. for causing simple injuries to P.W.1. The trial Judge, while finding the second appellant guilty under Section 302, I.P.C. and sentencing him to imprisonment for life, found appellants 3 to 5 guilty under Section 302 read with 149, I.P.C. and sentenced each one of them to imprisonment for life. He also found the first, appellant guilty under Section 302 read with 109, I.P.C., for which, he was sentenced to imprisonment for life. The appellants challenge their conviction and sentence in this appeal. 3. Shorn of unnecessary details, the case of the prosecution can be briefly sumrnarised as follows: Appellants 2 to 5 are the sons of the first appellant. P.W.1 is the younger brother of the deceased. P.W.5 is the son-in-law of the deceased. P.W.3 is the aunt’s son of P.W.5. The appellants challenge their conviction and sentence in this appeal. 3. Shorn of unnecessary details, the case of the prosecution can be briefly sumrnarised as follows: Appellants 2 to 5 are the sons of the first appellant. P.W.1 is the younger brother of the deceased. P.W.5 is the son-in-law of the deceased. P.W.3 is the aunt’s son of P.W.5. The deceased was a former Member of the Legislative Assembly and was a contractor by profession. He used to sell tamarind during tamarind season and was also running a rice mill. The appellants were residing at Dharmapuri, while the deceased was a resident of Madhikonpalayam village. During tamarind season, a dispute arose between the deceased and the first appellant, when trees were auctioned for plucking the tamarind fruits. On account of that, quarrels ensued between the parties and they were not on talking terms during the relevant period. On 11.11.1992 at about 7.30 p.m., P.Ws.1, 4 and one Nanjappan were sitting near a bus stop at Dharmapuri. The deceased was also present along with them. On seeing the second appellant, the deceased asked P.W.1 to go and collect donation for organising a meeting at Dharmapuri in connection with the visit of a Minister. The second appellant refused to pay any donation but made disparaging remarks about the deceased telling him that he has already earned money by illegal means and that he need not beg money from him. The deceased, on hearing the words of the second appellant, got annoyed and told him that if he is not willing to pay donation, there is no need for him to make such comments and that he should not behave in such an unruly manner. The second appellant insisted that he will behave in such a fashion and that he will be the person, who will finish him off one day. He has further stated that unless the deceased is finished off, they will not he able to improve their business. P.W.1 intervened in the quarrel and asked his brother to leave the plac e. Thereafter, the deceased and P.W.1 got into his car and went to Madhikonpalayam, where the deceased and P.W.1 alighted near the rice mill and sent the vehicle away. At the rice mill, the deceased and P.W.1 stayed for sometime, during which, they were discussing about the ensuing marriage of P.W.1’s second son. At the rice mill, the deceased and P.W.1 stayed for sometime, during which, they were discussing about the ensuing marriage of P.W.1’s second son. At about 10.15 p.m., P.W.1 came out of the rice mill and saw the first appellant coming from east. Appellants 2 to 5 were also seen coming along with him. On seeing P.W.1, appellants 2 to 5 hel d his hands and the first appellant, instigated them to finish him off. Immediately, the fourth appellant beat P.W.1 with a cycle chain on his head, back of chest, chest, and left side of the wrist. The other three appellants beat him with hands. P.W.1 raised alarm and the deceased came out of the rice mill. He intervened to prevent the fourth appellant from beating P.W.1. The first appellant instigated his sons to finish off the deceased. Thereafter, appellants 3 to 5 held the hands of the deceased and the second appellant stabbed the deceased on the left side of his chest. The deceased fell down and all the appellants ran away from the place. The deceased was writhing for pain and struggling for life. P.Ws. 1 to 3 and 5 rushed to the place and removed the deceased to Government Hospital, Dharmapuri, where he was examined by P.W.14. On examination, Ranganathan, the deceased, was found dead. P.W.14, the doctor, sent an intimation to the police authorities. 4. P.W.1, thereafter, left the hospital and proceeded to Dharmapuri Police Station, which he reached it at 00.30 hours on 11/12.11.1992 and gave an oral statement, which was reduced into writing by P.W.18, the Sub- Inspector of Police. The said statement is Ex. P-1 . On the complaint, Ex.P-1, a case in Crime No. 2132 of 1992 was registered against the appellants under Section 302, I.P.C. The printed first information report in the said crime is Ex.P-22. The express reports were sent to higher officials and P.W.19, the Inspector of Police, on getting the copy of the printed first information report at 1.40 a.m. on 12.11.1992, proceeded to the scene of occurrence and at 2.00 p.m., prepared an observation mahazar, Ex.P-5, attested by P.W.9 and another. A rough sketch, Ex.P-23, was drawn by him. M.Os.5 and 6, the blood stained earth and sample earth respectively were recovered under a mahazar Ex.P-6 attested by the same witnesses. A rough sketch, Ex.P-23, was drawn by him. M.Os.5 and 6, the blood stained earth and sample earth respectively were recovered under a mahazar Ex.P-6 attested by the same witnesses. P.W.19, leaving the scene of occurrence, proceeded to Government Hospital, Dharmapuri, where the Police Photographer was already present. The photographer, P.W.7, took photographs of the dead body. P.W.19 issued summons to the Panchayatdars and on their appearance, commenced inquest at 3.15 a.m. over the body of Ranganathan. The inquest was over by 4.30 a.m. and during the course of inquest, P.Ws.1, 2 and others were examined, whose statements were recorded. The inquest report is Ex.P-25. Since the officer found injuries on P.W.1, he was referred to the hospital with a memo for taking treatment. Accordingly, P.W.1 appeared before P.W.18, Civil Assistant Surgeon attached to Government Hospital, Dharmapuri, who examined P.W.1 and found the following injuries on his person: (1) An abrasion of 1 cm x 1 cm over right hand dorsam aspect. (2) A contusion of 1 cm x 1 cm over the nap of neck skin colour on the left side. (3) An abrasion of 1 cm x 3 cm in front of chest, transversely placed just above the nipple. (4) An abrasion of 1cm x 4 cm over the left loin. The doctor issued Ex.P-13 the copy of the wound certificate, with his opinion opining that the injuries are simple in nature. 5. In the meantime, the officer, after the inquest, handed over the dead body of Ranganathan to P.W.11, a Police Constable, with a requisition, Ex.P-14, to the doctor for conducting autopsy. 6. On receipt of the requisition and the dead body from P.W.11. P.W.15, the Civil Assistant Surgeon attached to Government Hospital, Dharmapuri, conducted autopsy on the dead body of the deceased, Ranganathan, and found the following injury: “Penetrating injury 5 x 2 x 10 cms vertically over the left side chest at the function of second rib with sternum, which was probed and found to be entering the chest cavity through the lung into the heart.” The doctor issued Ex. P-15, the post-mortem certificate, with his opinion that the deceased would have died on account of shock and haemorrhage due to the stab injury to vital organ and death would have occurred at about 10 to 12 hours prior to autopsy. 7. P-15, the post-mortem certificate, with his opinion that the deceased would have died on account of shock and haemorrhage due to the stab injury to vital organ and death would have occurred at about 10 to 12 hours prior to autopsy. 7. P.W.19, continuing with his investigation, seized the blood stained clothes, which were on the dead body, on being produced by P.W.11, under Form 95. On 13.11.1995, the doctor, P.W.15, who conducted autopsy, and other witnesses were examined and their statements were recorded. The appellants were found absconding and therefore, a special team was formed to nab them. On an information received, P.W.19 proceeded to Sovathur junction and at 7.30 a.m. on 20.11.1992, arrested the third appellant and his statement was recorded. The third appellant took the police party and produced M.Os.7 to 9, shirt, baniyan and dhothi, which were seized under a mahazar Ex.P-8. As the third appellant had injury on his person, he was referred to the hospital for treatment. The third appellant was examined by P.W.16, the Assistant Surgeon attached to Government Hospital, Dharmapuri, and he found the following injuries: (1) A sutured wound 2 cm in size seen over the left parietal area. (2) A sutured wound 3 cm in size over the right parietal area. The doctor issued Ex.P-16, the wound certificate, with his opinion that the injuries found on the third appellant are simple in nature. 8. In the meantime, on 24.11.1992, the officer examined P.D.O. Manoharan and on 24.11.1992, he examined the doctor, P.W.16. On 30.11.1992, he gave a requisition, Ex.P-17, to the Court to send the material objects for analysis. On 18.12.1992, he examined Rajaram and his further statement was recorded. On 3.1.1993, he examined P.W.13, who had given first aid to the third appellant, and further investigation was taken up by his successor, P.W.20, on the directions of the Additional Superintendent of Police. 9 . On 19.11.1992, P.W.20, on getting information about the other appellants, proceeded to Salem-Dharmapuri main road and arrested the second appellant at 9.00 a.m. He gave a statement and the admissible portion is marked by the prosecution as Ex.P-9. The second appellant produced a shirt, a baniyan and a dhothi, and they are marked as M.Os.10, 11 and 12. They were seized under a mahazar Ex.P-10. The second appellant produced a shirt, a baniyan and a dhothi, and they are marked as M.Os.10, 11 and 12. They were seized under a mahazar Ex.P-10. The second appellant took the police party to a river bed at Madhikonpalayam and produced M.O.1, Knife, which was kept concealed in a bush near a railway bridge. The same was seized under a mahazar Ex.P-11. He questioned the witnesses, who attested the mahazars, and recorded their statements. The second appellant was sent to Court for remand. The other appellants have surrendered before the Court. Further investigation was taken up by P.W.21, who after verifying the investigation conducted by his predecessor, P.W.20, laid the final report against the appellants on 2.4.1993. 10. The appellants were questioned under Section 313 of the Cr.P.C. on the incriminating circumstances appearing against them. The first appellant denied all the incriminating circumstances and stated that a false case had been foisted upon him. The second appellant, while denying the incriminating circumstances put against him, filed a written statement. In the written statement, the second appellant had come out with a version that it is true that there was a dispute in existence between his family and the family of the deceased; but denied that his family participated in the auction. He has stated that his father, who is the first appellant, was aged about 72 years and was confined to bed in the house. He has stated that his family cou1d not adjust with the deceased, since the deceased and the third appellant, belonged to two different political parties. According to him, no donation was asked from him by P.W.1 and donation was asked by a cadre from the political party, to which, the deceased belonged and that he made a remark that the amounts, which have been already collected, can be utilised for arranging the meeting and why the deceased should resort to this kind of tactics for collecting money, and the above statement made by him fell into the ears of the deceased and P.W.1. He has further alleged that at about 8.30 p.m. on 11.11.1992, Mathikonpalayam village was in tense situation and he went to the house to see his father and heard, on the way, that he and his family members are going to be beaten by the political party to which the deceased belonged. He has further alleged that at about 8.30 p.m. on 11.11.1992, Mathikonpalayam village was in tense situation and he went to the house to see his father and heard, on the way, that he and his family members are going to be beaten by the political party to which the deceased belonged. He has further stated that he received an information at about 9.30 p.m. that the that the members belonging to the political party of the deceased are going to burn tiers and throw them into the rice mill of the appellants and he, therefore, asked his father and other family members to leave the house and to take shelter at a different place and that while he was proceeding in Thirupathur road, the third appellant, was beaten with a stone and that the third appellant ran away from the place. According to him, on seeing him, P.Ws.1, 3 and two others held him and dragged him towards the mill and threatened him that he is going to be tied and thrown into the fire and that the deceased was heard shouting that they must obtain a bond from him and that in order to escape from their attack and to save his life, he took out a pen knife, which was with his key bunch, and stabbed without aiming at anyone and without, any intention to cause injury to any particular person and thereafter, ran to Mathikonpalayam Police Station, where he surrendered. According to him, the third appellant was also at the police station and that a complaint was given to the police officers about the burning of his rice mill, but the police officers did not record the said complaint. He has further alleged that he was detained at the police station for a week and later he was remanded, on the advice of senior po1ice officers. He has also stated that the henchrnen of the deceased damaged his properties and that police officers did not take any action against them, as they belong to a particular political party and according to him, he has been falsely implicated in the case. He has denied that the first appellant instigated and that the fourth appellant beat P.W.1 with a cycle chain. He has denied that the first appellant instigated and that the fourth appellant beat P.W.1 with a cycle chain. He denied that he was arrested by the police officers at Thoppur and he did not produce M.O.1, The third appellant also filed a written statement and took a similar plea: 11. The learned counsel appearing for the appellants submits that the case of the defence as suggested to the witnesses and made clear by way of a written statement filed by the second and third appellants coupled with the answer given by P.W.19 in the cross examination show that the occurrence did not take place in the manner suggested by the eye witnesses, who were examined as P.Ws. 1 to 5 and that the second appellant stabbed the deceased in the exercise of his right of private defence and therefore, he is entitled for an acquittal. We have heard the learned Additional Public Prosecutor on the above contentions and also heard the recorded evidence. 12. The defence, before the trial Court, did not dispute that Ranganathan died on account of the stab injury to the chest. The doctor, P.W.15, who conducted autopsy, gave evidence in Court and according to him, the said injury, which he found on the dead body of Ranganathan, could have been caused with a sharp edged weapon like M.O.1 and that the said injury was on the vital part of the body of the deceased. On the medical evidence, we hold that the deceased, Ranganathan, died on account of homicidal violence. The said fact is also not disputed by the defence counsel. 13. According to the prosecution, the occurrence took place when P.W.1 came out of the rice mill belonging to the deceased and that the first appellant instigated his sons to attack him and while he was attacked by the fourth appellant and beaten by the other appellants, he raised alarm and the deceased came out of the rice mill. According, to the eye witnesses, on seeing the deceased coming out of the rice mill, the first appellant instigated the other appellants to finish him off and thereafter, appellants 3 to 5 held him by the hands and the second appellant inflicted a stab injury on the chest and thereafter, all the appellants ran away from the scene. It is the further case of P.Ws. It is the further case of P.Ws. 1, 2 and 3 that the deceased, Ranganathan was taken to the Government Hospital at Dharmapuri, where on being examined by the doctor. P.W.14, he was found dead and later, the complaint. Ex. P-1 was given at the police station by P.W. 1 to P.W.18, the Sub-Inspector of Police. According to the witnesses, P.Ws. 1 to 3, they saw the occurrence and witnessed P.W.1 being beaten by the fourth appellant and the deceased being stabbed by the second appellant. Though the defence do not dispute that the second appellant stabbed the deceased, the second appellant had come out with a version by filing a written statement, the contents of which, we have already extracted. According to the second appellant, he stabbed with a pen knife and that he did not aim at anyone in particular and that according to him, he had to stab because his properties were destroyed and an attempt was made by the henchmen of the deceased to drag him into the rice mill with a view to tie him and throw him into the fire. He has further stated that, apprehending danger to his life, he took out a pen knife from the key bunch and stabbed without aiming at any anyone and the stab fell on the deceased. In view of the above admission of the second appellant that he stabbed the deceased and that the said stab injury was inflicted in the exercise of right of private defence, the Court is to find out whether the said statement is true or not. 14. At this juncture, the admission made by P.W.19 assumes importance. It was he, who conducted most part of the investigation. In the cross-examination, he has admitted that during the occurrence the rice mill of the second appellant, house of the first appellant, godown, motorcycle and a maruthi car belonging to the third appellant were burnt and that P.W. 19 did not register any complaint, though he received information about the said incidences at 3.30 a.m. on 12.9.1992 itself. The officer has also stated that he did not even conduct any investigation as regards the damage suffered by the properties belonging to the appellants and that he did not even go to the place to find out the extent of damage to the properties of the appellants. 15. The officer has also stated that he did not even conduct any investigation as regards the damage suffered by the properties belonging to the appellants and that he did not even go to the place to find out the extent of damage to the properties of the appellants. 15. It is to be remembered at this stage that the third appellant suffered injuries at the time of incident, since, according to the third appellant, he was beaten with a stone by P.W.10. After his arrest, he was sent for treatment and P.W.16, the doctor, who examined him, issued Ex.P-16, the wound certificate. When he was questioned, the third appellant told him that he suffered the said injuries on account of a person assaulting him near S.R. Rice Mill (rice mill belonging to the deceased) with a stone. It is, therefore, clear that the answer given by P.W.19 is in consonance with the statement of appellants 2 and 3, which is also supported by the medical evidence brought out through P.W.16. We cannot also lose sight of the fact that the prosecution did not explain the said injury found on the third appellant, though we are aware that in all cases, the prosecution is not expected to explain the injuries found on the accused. We have already held that the investigating officer has admitted that the properties of the appellants were destroyed during the course of the same transaction and that he neither registered a complaint, nor did he investigate about the same. In this background, we cannot simply reject the statements of appellants 2 and 3, more so, when they are supported not only by the answers given by P.W.19, but also by the medical evidence. The second appellant has come out with a specific version that he was dragged into the rice mill by the henchmen of the deceased and the deceased and his henchmen were also shouting that he Is to be tied and thrown into the fire and his properties were already destroyed and therefore, apprehending danger to his life, he stabbed; but without aiming any particular person. 16. 16. On the above facts, we are satisfied that the second appellant had reasonable apprehension that death or grievous hurt will be the consequence on account of the act of the deceased party in dragging him to the rice mill and threatening him to kill by throwing him into the fire. 17. In Jaidev v. State of Punjab, 1965 SC 612, the Supreme Court, while considering the plea of right of private defence held as follows: “There can be no doubt that, in judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the uppermost feeling in his mind would be to ward off the danger and to save himself or his property, and so he would naturally be anxious to strike a decisive blow in exercise of his right. It is no doubt true that in striking a decisive blow, he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force is used than is necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a Court room for instance long after the incident has taken place that is why in some judicial decisions it has been observed that the means which a threatened person adopts or the force which he uses should not be weighed in golden scales. To begin with, the person exercising a right of private defence must consider whether the threat to his person or his property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. So long as the threat lasts and the right of private defence can be legitimately exercised it would not be fair to require, as Mayne has observed, that he should modulate his defence step by step, according to the attack, before there is reason to believe the attack is over. The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for a safety. It entitles him to secure his victory over his assailant by using the necessary force.” The above principles laid down by the Supreme Court had become locus classsicus . 18. In Munshi Ram and others v. Delhi Administration, AIR 1968 SC 702 , the Supreme Court held as follows: “The right of private defence serves a social purpose and that right should be liberally construed. Such a right not only will be restraining influence and bad characters but it will encourage the right spirit in every citizen and that there is nothing more degrading to the human sprit than to run away in face of peril.” 19. The above view of the Supreme Court was later quoted with approval in Gottipulla Venkata Siva Subbrayanam and others v. The State of Andhra Pradesh, AIR 1970 SC 1079 . The Supreme Court held that the right of private defence of person and property is recognised in all free, civilised, democratic societies within certain reasonable limits and those limits are dictated by two considerations: (1) that the same right is claimed by all other members of the society; and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. The Supreme Court further held that the citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrongs done to them or to punish the wrongdoer for commission of offences and the right of private defence serves a social purpose and as observed by this Court more than once there is nothing more degrading to the human spirit than to run away in face of peril. 20. The above principles laid down by the Supreme Court apply with all force to the facts of this case and this Court, as observed by the Supreme Court, cannot weigh the act of the second appellant in golden scales to find out whether the second appellant, who is a threatened person, attacked or used force, which is more than necessary. In the case on hand, the second appellant has inflicted only one stab injury and therefore, it cannot be even said that he exceeded his right of private defence. 21. On the facts of this case, we hold that the second appellant stabbed the deceased in the exercise of right of private defence and therefore, we acquit the second appellant. Once this Court comes to the conclusion that the second appellant stabbed the deceased in the exercise of right of private defence, then the case of the prosecution, that the other appellants instigated him and thereafter he stabbed, will fall down to the ground like a deck of cards and the entire prosecution case is to be thrown out and accordingly, it is rejected. 22. In the result, the appeal is allowed and all the appellants are acquitted of all the charges with which they are convicted. It is reported that the appellants are on bail. Their bail bonds shall stand cancelled.