The appellant stands convicted for offence under Section 304 (2) IPC and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.1,000/- in default, to undergo three months rigorous imprisonment and under Section 324 IPC to undergo one month rigorous imprisonment and to pay a fine of Rs.250/- in default, to undergo one month rigorous imprisonment by the learned Additional Sessions Judge, FTC No.II, Gobichettipalayam by judgment dated 28.06.2002.
2. The background facts in a nutshell are as follows:
The appellant, the deceased and P.W.1 are pangalis and they were living in Pattimaniyakarapalayam in Gopichettipalayam. The deceased is the father of P.W.1. There was a dispute regarding cutting of trees about ten years ago and there were criminal cases between the appellant and the deceased. P.W.2 and 3, who are mother and daughter are living nearby the house of the deceased. P.W.2 is the wife of P.W.1's cousin brother. The occurrence had taken place on 30.06.2001 at 10.00 A.M. On the date of occurrence at about 10.00 A.M., the appellant had gone to the house of P.W.1 to 3 and questioned them as to why P.W.7, Murthy was visiting the house of P.W.2 very often to see her daughter P.W.3 and it was a shameful act for the entire village. The deceased and P.W.1 had told him that they wanted to give P.W.3 in marriage to P.W.7 and the appellant has no authority to question the visit of P.W.7. A wordy quarrel ensued between them which ultimately turned into a scuffle and at that time P.W.4 intervened to pacify them and set them apart. It is alleged that the deceased picked up a stone and threw at the appellant and attempted to pick up another stone, which provoked the appellant who took the bill hook (Palaikathi) from P.W.4's box that was carried by him with instruments for climbing the coconut tree and chased him till P.W.2's home, stabbed him on the left side of his neck, as a result of which the deceased fell down. P.W.1 intervened and came to the rescue of the deceased, he was also stabbed by the same weapon on his right shoulder and right rib and thereafter, the appellant ran away from the said place.
3. P.W.1 and the deceased waited for the arrival of P.W.6, the elder son of the deceased, who took them to Gopichettipalayam Government Hospital and from there, they were taken to Erode Government Hospital. The deceased and P.W.1 were sent to Coimbatore Government Hospital on the same day. However, the deceased died of the injuries and its consequential effect on 06.07.2001 i.e. after about six days.
4. On intimation from Gopichettipalayam Government Hospital on 30.06.2001, P.W.15, the Head Constable attached to Varapalayam Police Station went to the Erode Government Hospital and recorded the statement from P.W.1 and based on the said statement P.W.18, the Sub-Inspector of Police registered a case in Cr.No.345 of 2001 under
Section 307 &
326 of IPC at 6.45 P.M. and prepared printed FIR Ex.P23.
5. P.W.20, the Inspector of Police, on receipt of FIR Ex.P23 on 01.07.2001 at about 11.00 A.M. went to the Pattimaniyakarapalayam Village and prepared Observation Mahazar Ex.P2 and a rough plan Ex.P27 in the presence of P.W.8, Palanichamy and one Veluchamy and photographs was taken by P.W.13, Devaraj. Blood stained sand, sample sand, blood stained cloth and shirt, blood stained sesame plant and blood stained gunny bag were seized under Mahazar Ex.P3 and recorded the statements of P.W.2, P.W.3 & P.W.8 and also other witnesses. On 02.07.2001 at about 11 A.M. arrested the accused near Puliyampatti Main Road Anjanoor Bus Stand in the presence of witnesses and obtained confessional statement from him and sent him for judicial custody.
6. In the meanwhile on 06.07.2001, the deceased succumbed to the injuries and after the inquest, his body was sent for Post-mortem with a requisition to that effect and the case was altered under
Sections 302,307 and
326 IPC.
7. P.W.11, Dr.M.Sundararaj, attached to Coimbatore Medical College Hospital had conducted the Post-mortem and found the following injuries:-
"Injuries (ante mortem): 1.Sutured partiallly healed horizontal cut injury of 6.5 cms in length seen over the back of lower aspect of neck. The left lateral end of the wound is 7 cms below left mastoid process. The right lateral end of the wound in 7.5 cms below the right mastoid process and middle of the wound is 8 cms below the external occipital protuberance. On removal of the sutures the wound is 6.5 cm in breadth and 5 cms in depth. The wound passes upwards and forwards cutting the underlying muscles, vessels, nerves and causing fracture of c7 vertebra and dislocation of c7 over T1 vertebra with partial transaction of underlying spinal cord with surrounding contusion. 2. Superficial bed sore of 4 cm x 3cm x skin deep seen over sacral region.
Opinion: The deceased would appear to have died of cervical spine and spinal cord injury and its sequlae."
The Inspector of Police had recorded the statements of witnesses after obtaining the reports has filed the final report against the appellant for the offences as stated above.
8. The case was taken on file in S.C.No.38 of 2002 on the file of the learned Additional Sessions Judge, Fast Track Court No.II, Gobichettipalayam and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 20 witnesses and also relied on Exs.P1 to P30 and M.O.Nos.1 to 15.
9. On completion of the evidence on the side of the prosecution, the accused was questioned as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false.
10. The Court below, after hearing the arguments advanced on either side and looking into the materials available, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal.
11. This Court heard the submissions of the learned counsel on either side and also perused the material records placed.
12. Mr.A.K.Kumaraswamy, the learned counsel for the appellant urged before this Court that the prosecution has not proved the motive for the appellant to commit the crime, as the dispute regarding cutting of trees between the appellant and the deceased family was ten years prior to the occurrence and there was no subsequent quarrel between them till the date of occurrence. It is true that the previous motive alleged by the prosecution is too remote to the occurrence, as P.W.1 admits in his evidence that the said dispute related back to ten years prior to the occurrence and there was a case and counter case which ended in acquittal and thereafter, there was no dispute between them.
13. But his contention that there was no immediate motive for the accused to attack the deceased cannot be accepted, as it is revealed from P.W.1 to 3's evidence that the appellant came to the place of P.W.1 to P.W.3 and questioned regarding P.W.7's frequent visit to P.W.2's home and reprimanded them in allowing P.W.7 to visit P.W.2's house. P.W.1 to P.W.3 and P.W.7 have spoken to the said fact, though in cross-examination P.W.7 stated that he had gone there only with his parents. In so far as P.W.2 is concerned she was in cordial terms with the appellant and there was no reason for her to depose falsely against him. In fact, she has stated that the appellant used to talk to her normally. Therefore, the contention that there was no immediate motive for the appellant to quarrel with the deceased and P.W.1 is not tenable.
14. The learned counsel for the appellant argued that Ex.P1 is not the FIR which was given at the earliest point of time and pointed to the evidence of P.W.6, the elder brother of P.W.1 that he already gave information to the Nambiyur Police even before going to the Gopichettipalayam Government Hospital and therefore, he would contend that the earliest FIR has been suppressed by the police for obvious reasons. P.W.6 while taking the deceased and his injured brother to the Hospital, had given information ( jfty;) to the Nambiyur Police . He has stated though they recorded the same, but did not get his signature in the said report. The police had advised him to take the injured immediately to the Hospital.
15. P.W.6 is neither an injured nor an eye-witness to the occurrence. The information he is alleged to have given in the Police Station cannot be a detailed information as he has not seen the occurrence. A cryptic information given to the police cannot be treated as an FIR. A statement casually given to the police is not an FIR and it cannot be an account of what happened on the said day in order to commence the investigation. A Police Officer would commence the investigation only if he actually receives an authenticated report from some one as to what actually happened and that information would be the first information. In the instant case, even assuming that some information has been given by P.W.6 to the concerned police, it cannot be an FIR as he had no personal knowledge of the incident. Further, since the police officer to whom he is said to have given the information has adviced him to give immediate medical assistance to the injured and therefore, in the said circumstances, mere information given to the police cannot be treated as an FIR.
16. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the name of the eye-witnesses present at the scene of occurrence. P.W.18, the Sub-Inspector of Police who has registered the FIR has stated that on receiving intimation from the Erode Government Hospital, he went to the said hospital and recorded the statement of P.W.1 and registered the case. The evidence of P.W.1 and P.W.6 indicates that the deceased was not in a condition to speak when he was brought to Erode Government Hospital. There is not even a suggestion to P.W.18 that he had already received report from P.W.6 and has suppressed the same as it was not in favour of the prosecution. Therefore, in the absence of any significant discrepancy in version of prosecution in the FIR and in evidence before the Court, the non registering of FIR on the information given by P.W.6 does not affect the prosecution case materially.
17. The next submission made by the learned counsel for the appellant is that though the deceased was alive for six days and was conscious when he was taken to Coimbatore Government Hospital, no statement has been recorded from him. He would submit that there was ample opportunity to record a statement from the deceased and even though a dying declaration could have been recorded by requesting the services of a Magistrate, no such evidence was made available and in such circumstances, in the light of writing made in Ex.P.7 by the Doctor P.W.10 that three persons were assailants and later scored off the number three creates doubt about the truthfulness of the prosecution case and does not rule out false implication of the accused.
18. The evidence of P.W.9, Dr.Nirmal attached to the Gopichettipalayam Government Hospital throws much light on this point and he has stated that P.W.1 told him that one known person stabbed him with Palaikathi. He has admitted about the scoring off the number '3' but asserts that it was only done by him and further he would state that as he did not have carbon, he wrote it with pen. There is no reason to doubt his testimony, as he has no grudge against the appellant.
19. That apart, the evidence adduced by the prosecution is found reliable and there is nothing to infer that the deceased was attacked by three assailants. The eye-witnesses appear to be a truthful witnesses and P.W.4, a person working under the accused has no reason to depose falsely against the accused. Their evidence is worthy of credence and a few minor discrepancies and contradiction in their evidence on totally immaterial points cannot be considered as sufficient ground to discard the prosecution case.
20. The learned counsel for the appellant drew the attention of this Court to the prosecution evidence more particularly to that of P.W.4 and P.W.5 and strenuously contended that if any assault was done by the appellant, it was in exercise of right of the private defence and therefore, conviction was not called for. In support of the said plea, the learned counsel submitted that the evidence of P.W.4 & 5 would show that the deceased attacked the appellant with a stone and attempted further to attack him by taking another stone which prompted the appellant to attack him with the Palaikathi and it was done in the exercise of the right of private defence.
21. The learned counsel would further urge that it is not necessary for the accused to plead in so many words that he acted in self defence and whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of the case. He would submit that the Court must consider all the surrounding circumstances and if the evidence revealed that the right of private defence was legitimately exercised, it was open to the Court to consider such a plea. He submitted that in the instant case, even if the appellant has not taken the said plea in the trial, the same is available for consideration from the material on record.
22. The learned counsel for the appellant in support of his contention relied upon the decision of the Hon'ble Supreme Court rendered in the case of Periasami and another Vs. State of Tamil Nadu (1997 MLJ (Crl.) 222 ) wherein, it is held that though the appellants have not stated when they were examined under
Section 313 of Cr.P.C. that they have acted in exercise of their right of private defence, absence of such a specific plea will not deprive them the right of private defence if it can be made out otherwise. The same view is reiterated by the later judgment of the Hon'ble Supreme Court in Kashiram & Others Vs. State of M.P. (2002 (1) SCC 71).
23. This Court in Raja @ Rajakkannu Vs. State (1995 (4) Crimes 69) has held as follows:
"If it is apparent from the record, whether produced by the prosecution or the defence, that the general exception would apply, then the presumption is removed and it is open to the Court to consider whether the evidence proves to the satisfaction of the Court that the accused comes within the exception."
24. It is well settled from the decisions stated supra that it is not necessary that the accused must plead it specially or specifically or lead evidence and if it is shown from the records whether produced by the prosecution or defence that the accused legitimately exercised the right of private defence, then the Court can consider those materials available on record. But, it is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution.
25. The question in such a case would be a question of assessing the true effect of the prosecution evidence and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. It is also well settled that the burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
26. The oft-quoted observation of the Hon'ble Supreme Court in Salim Zia Vs. State of U.P. (AIR 1979 SC 391) reads as follows:
"It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence."
27.
Sections 102 &
105 IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension (emphasis supplied).
28. As noted in Bulla Singh Vs. The State of Punjab (AIR 1991 SC 1316), a person who is apprehending death or bodily injury cannot weigh in golden scales on the spur of the moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation which is commensurate with the danger apprehended to him where assault is imminent by use of force. It would be lawful to repel the force in self-defence and the right of private-defence commences, as soon as the threat becomes imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper-technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact-situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.
29. In the instant case for bringing the said exception in its operation, it must be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel, without the offender having taken undue advantage and not having acted in a cruel or unusual manner. It is no doubt true that the evidence adduced satisfy the first two ingredients, but I am unable to find any cogent evidence to infer that the appellant has not taken undue advantage and not acted in an unusual manner. The weapon used and the manner of attack by the appellant if taken into consideration, it cannot be said that he has not taken undue advantage of the situation.
30. The testimony of P.W.1, the son of the deceased P.W.2, widow of his cousin brother, P.W.3 daughter of P.W.2 are cogent and consistent with regard to the narration of event and it is revealed that initially it was a wordy quarrel which ultimately turned out to be scuffle between the appellant and the deceased. P.W.4 had intercepted and tried to avert the scuffle, but the appellant has pulled the palaikathi from his box and has stabbed the deceased on the left side of his neck. During his cross examination, it is elicited from P.W.4 that in the course of scuffle, the deceased tried to attack the appellant by picking a stone and on seeing it, the appellant had pulled the palaikathi from P.W.4's box and stabbed the deceased. P.W.5 also has spoken to the said fact. Though P.W.1 have not spoken to the above said fact, but there is no reason to discard the evidence of P.W.4 & 5 on this aspect. Therefore, it is more likely that the deceased had attempted to attack the deceased by throwing stone at him.
31. Admittedly, the deceased & P.W.1 were unarmed. Even according to P.W.4, the deceased picked up only stone to throw at the appellant. P.W.1 to P.W.3 have categorically stated that the appellant chased the deceased to the house of P.W.2 and stabbed him on the left side of his neck and also stabbed P.W.1 on his right shoulder and right rib when he came to the resuce of the deceased. It cannot be said that fearing attack by the deceased and P.W.1, the appellant had run away from the scene, because only after causing the injuries on the deceased and P.W.1, he had run away from the said place. P.W.4 & P.W.5 also have deposed that the deceased was stabbed near P.W.2's house. It is the case of the prosecution that P.W.2 was drying the sesame crops in front of her house when the incident occurred. The seizure of blood stained sesame crops under Ex.P3 Mahazar coupled with serological report Ex.P19 finding that sesame crops contained human blood strengthen the prosecution case that the deceased was stabbed in front of P.W.2's house. Further, the appellant has attacked the deceased on his neck which is a vital part and it cannot be that the appellant attacked the deceased without the knowledge that it was likely to cause the death. The nature and manner of attack would clearly establish that the appellant has taken undue advantage of the situation.
32. Considering the above said background facts, it is clear that the appellant cannot be said to have exercised the right of private defence. However, there is substance in the plea made by the learned counsel for the appellant that the occurrence had taken place in the course of a sudden quarrel without any premeditation. The trial Court, on taking into consideration the above aspects convicted the appellant under
Section 304 (2) of IPC which is liable to be confirmed. However, on facts and circumstances of the sentence could be modified and reduced to three years Rigorous Imprisonment.
In the result, the Criminal Appeal is partly allowed, confirming the conviction under
Section 304 (2) IPC and the sentence is reduced to three years rigorous imprisonment. The conviction and sentence under
Section 324 IPC is also confirmed. The imposition of fine and the default sentence shall stand unaltered. It is seen from the records that the appellant was enlarged on bail by this Court. The bail granted to the appellant is cancelled and the learned Additional Sessions Judge, Fast Track Court No.II, Gobichettipalayam shall take steps to secure his presence and commit him to prison to undergo the remaining period of sentence.
17.11.2009 Index :Yes Internet :Yes DP ARUNA JAGADEESAN, J.
DP To The Inspector of Police, Varapalayam Police Station, Gobichettipalayam Taluk, Erode District.
Pre-Delivery Judgment made in Crl.A.No.1057 of 2002 17.11.2009