& Anr Vs. State of Tamil Nadu  INSC 1202 (25 September 1996)
K.T. (J) Thomas K.T. (J) Anand, A.S. (J) Thomas.J.
have pronounced the verdict in this appeal on 29.8.1996 by altering the
conviction of the two appellants to the offence under section 304 part I read
with section 34 of the IPC and sentencing them each to rigorous imprisonment
for seven years. However, we reserved our reasons thereof and hence we now
state the reasons as under:- First appellant (Periasamy) and second appellant (Ramaswamy)
were prosacuted along with one Murugesam for offences under section 302/34 IPC
on the allegation that they with common intention to murder deceased Ranganathan
attached him with billhook, spear and lathi at about 9.30 a.m. on 12.6.1989. Sessions Court acquitted all the three
accused, but the High Court of Madras, on appeal by the State, set aside the
acquittal and convicted the two appellants under section 302/34 IPC. The other
accused Murugesan was, however, convicted only under section 324 IPC.
Appellants have filed this appeal under section 2 of the Supreme Court
(Enlargement of Criminal Appellate) Jurisdiction Act 1970.
story, in brief, is the following:- periasamy (first appellant) is the son and Murugesan
is the nephew of Ramaswamy (second appellant). About five years prior to the
murder, second appellant's daughter Mallika was indecently assaulted by
deceased Ranganathan for which there was a criminal case and Ranganathan was
convicted in that case. A couple of years thereafter the plantain crops of
deceased Ranganathan were destroyed by the goats of second appellant over which
there was some altercation between them. Thus, bad blood existed between the
deceased and second appellant's family.
morning of the occurrence day deceased Ranganathan in association with four
other persons (including PW1 and PW2 ) engaged themselves in the work of
shifting an oil engine to a field for irrigation purposes.
about 9.30 a.m. deceased Ranganathan alone went to
a nearby plantain grove to ease himself. After a little while PW1 and PW2 heard
the squeal of a pig followed by the yells of Ranganathan. PW1 and PW2 rushed to
the place and then they saw the first appellant inflicting a blow on the neck
of Ranganathan with a billhook and the second appellant stabbing him with a
spear on the chest. When deceased tried to escape he was assaulted by Murugesan
with lathi, Second appellant again stabbed him with the spear. Deceased fell
down but first appellant cut him on the neck with the billhook two or three
times more. Assailants thereafter took to their heels. Deceased Murugesan
succumbed to his injuries within an hour.
went to the local village administrative officer (PW-8) and informed him of the
incident. PW8 went to the spot of occurrence and verified the correctness of
the information furnished by PW1. After returning to his office PW8 recorded
the statement of PW-1 (Ext.P-1) which was forwarded to Velur Police Station.
FIR was prepared on its basis and during investigation appellants were
arrested. On completion of the investigation the police charge-sheeted the
appellants and Murugesam arraying them as A1, A2 and A3, respectively.
and PW2 are the only eye witnesses examined by the prosecution PW5 (Gunasekharan)
deposed that PW2 rushed to his house soon after the occurrence and told him of
what the three accused did to the deceased and that he went to the spot with PW
2 and found his brother badly mauled. He made efforts to remove the injured to
the hospital but his brother died before reaching the hospital. PW6 said that
she saw the three accused running away from the scene with the weapons, PW7
said that he over-heard some pedestrians mumbling between each other that these
three accused had given cut blows to the deceased and a little later he saw the
accused washing themselves and cleaning the weapons beneath a bridge. PW7
further said that he over-heard a conversation as between the accused that the
weapons should be concealed and that they should consult a legal practitioner
Sections Judge declined to place reliance on the teescimony of any of the above
witnesses. The delay in registering the FIR and a recital found in the inquest
report showing the time of death of the deceased as 10.30 in the night on 12
6..1989 were highlighted by the learned Sessions Judge.
Court of Madras in reversal of the order, found the
evidence of PW1 and PW2 trustworthy. Learned Judge also placed reliance on the
testimony of PW5, PW6 and PW7.
Court did not accept the prosecution version that the third accused Murugesan
had common intention to murder the deceased. Hence, the appellants were
convicted and sentenced as aforesaid.
Siva Subramaniam, learned senior counsel who argued for the appellants has taken
us through the material evidence and advanced several contentions, main among
them is that High Court ought not have lightly intarferred with the acquital
passed by the trial court. Alternatively, he argued that the conviction should
not, in any view of the matter, have gone beyond the offence of culpable
Homicide not amounting to murder.
going through the evidence of PW6 and PW7 we too are not impressed by their
testimony. We are in agreement with the learning Sections Judge that no credit
can be given to their evidence. But the evidence of PW1 and PW2 stands on a
first hurdle which stands in the way of accepting PW-1's evidence is the delay
involved in preparing the FIR.
did not take down the statement of PW1 when it was made to him, but he went to
the spot to ascertain the truth of account given by PW1. There was the
possibility for deliberations and confabulations. In this context, we may refer
to the observations made by one of us (Dr.Anand J.) in Meghraj singh vs. State
of U.P. 1994 SCC 188.
object of insisting upon prompt lodging of the FIR is to obtain the earliest
information regarding the circumstance in which the crime was committed,
including the names of the actual culprits and the parts played by them , the
weapons if any, used, as also the names of the eye withnesses if any.
in lodging the FIR often results in smbellishment. which is a creature of an
afterthought. On account of delay, the FIR not only gets bereft of advantage of
spontaneity, danger also creeps in of the introduction of a coloured version or
exaggerated story." However, the above weakness attached to Ext.P-1 is not
enough to vitiate the entire testimony of PW-1. We have to see whether
assurance can be obtained from other evidence regarding the truth of his
also said that he saw the appellants striking the deceased with the weapons
when he went to the scene along with PW1. His evidence is consistent with the
testimony of PW-1. It is appropriate, in this context, to refer to PW-5 (Gunasekharan)
who is the brother of the deceased. He said that by about 9.30 A.M. PW-2 ran to
his house and told him that the three accused had dealt blows on Ranganathan
with billhook, spear and stick. PW-5 then rushed to the scene and saw the deceased
lying badly mauled. The witness, then narrated the efforts made to take his
injured brother to the hospital and how the efforts failed. The testimony of
PW-5 inspires confidence. It renders the version of PW-2 also believable.
recital in the lnquest report regarding the time of death of the decceased as 10.30 P.M. on 12.6.1989 has no utility whatsoever now. Firstly,
because the said recital in the inquest report is only a reproduction of what
witnesses would have told the investigating officer. It falls within the sweep
of the interdict contained in section 162 of the Code of Criminal Procedure
(for short 'the code') and hence could not be used for any purpose (except to
contradict its author). The mere fact that such a rscital found a place in the
inquest report is not enough to save it from the prohibition provided in the
section. Secondly, even otherwise we are satisfied that the time 10.30 P.M. shown in the inquest report is only a mistake for 10.30 A.M. and hence no implication would flow out of such an
counsel contended that evidence of the eye witnesses is in conflict with the
medical evidence and hence the sessions judge has rightly discarded it. Both
eye- witnesses ( PW-1 & PW-2) said that first appellant inflicted three cuts
with the billhook on the neck, but only one incised injury was noted by the
doctors on the neck of the deceased. The description of that injury in the
post-mortem certificate is this:
incised wound 20cm x 10cm x 19cm over the left side of the neck extending from
the left side of the clavicle to the nape of the neck.
and blood vessels were cut.
vertebra was cut at C5." When Dr. Ilango (PW-3) was asked in
cross-examination whether such injury can be caused in one cut he answered in
the affirmative. But no question was put to the doctor whether the said injury
could as well have been the result of multiplicity of cuts on the same situs.
Looking at the width of the injury as 10 cm. extending from left clavicle upto
the nape of the neck having a depth of 19 cm. involving blood-vessles and also
the 5th cervical vertibra we have no difficulty in countenancing the
possibility of multiple blows with a billhook resulting in that injury.
therefore concur with the conclusion of the High Court that appellants have
inflicted the fatal injuries on the deceased with lethal weapons and find no
conflict between the occular testimony and the medical evidence.
shall now deal with the alternative contention advanced by Sri Siva Subramaniam,
learned senior counsel, that the offence would not go above section 304 part 1
of the IPC. This contention is made on the premise that deceased was the
aggressor in the incident and hence appellant had initial right of private defence
though they would have exceeded that right. We may point out that appellants
have not stated, when examined under section 313 of the Code, that they have
acted in exercise of such right.
course, absence of such a specific plea in the statement is not enough to
denude them of the right if the same can he made out otherwise.
dealing with the said alternative contention we have to bear in mind section
105 of the Evidence Act. A rule of burden of proof is prescribed therein that
the burden is on the accused to prove the existence of circumstances bringing
the case within any of the exceptions "and the Court shall presume the
absence of such circumstances. "The said rule does not whittle down the
axiomatic rule of burden (indicated in section 101) that the prosecution must
prove that the accused has committed the offence charged against.
traditional rule that it is For prosecution to prove the offence beyond
reasonable doubt applies in all criminal cases except where any particular
statute prescribes otherwise. The legal presumption created in section 105 with
the words "the Court shall presume the absence of such circumstances"
is not intended to displace the aforesaid traditional burden of the
prosecution. It is only where the prosecution has proved its case with reasonable
certainity that the court can rest on the presumption regarding absence of
circumstances bringing the case with any of the exceptions. This presumption
helps the Court to determine on whom is the burden to prove facts necessary to
attract the exception and an accused can discharge the burden by 'preponderance
of probabilities' unlike the prosecution. But there is no presumption that an
accused is the aggressor in every case of homicide. If there is any reasonable
doubt, even from prosecution evidence, that the aggressor in the occurrence was
not the accused but would have been the deceased party, then benefit of that
reasonable doubt has to be extended to the accussed, no matter he did not
adduce any evidnece in that direction.
above legal position has been succintly stated by Subbarao J. (as he then was )
in a case where an accused pleaded the excepetion under section 84 IPC (Dahyabhai
Chhaganbhai Thakkar vs. State of Gujarat: AIR 1964 SC 1563):
prosecution, therefore, in a case of homicide shall prove beyond reasonable
doubt that the accused caused with the requisite intention described in S.299
of the Penal Code. This general burden never shifts and it always restson the
prosecution.....If the material placed before the court, such as, oral and
documentary evidence, presumptions, admissions or even the prosecution
evidence, satisfies the test of "prudent man", the accused will have
discharged his burden. The evidence soplaced may not be sufficient to discharge
the burden under section 105 of the Evidence Act, but it may raise a reasonable
doubt in the mind of a judge as regards, one or other of the necessary
ingredients of the offense itself".
vs. The State of Uttar Pradesh 1976 (2) SCC 798 a three judges bench was
considering a case where the accused failed to adduce evidence to establish the
under section 95 IPC. It was held that even if the accused failed to establish
his plea, in a case where prosecution has not established its case beyond
reasonable doubt against the appellant on an essential ingredient of the
offence of murder, the plea of right of private defence cannot reasonably be
ruled out from prosecution evidence the benefit of it must go to the accused.
In Yogendra Morarji vs. The State of Gujarat: (AIR 1980 SC 660 ) another bench
of three judges of this Court deal with section 105 of the Evidence Act and
the failure of the accused to establish positively the existence of
circumstances which would bring his case within an Exception, the circumstances
proved by him may raise a reasonable doubt with regard to one or more of the
necessary ingredients of the offence itself with which the accused stands
charged. Thus, there may be cases where, despite the failure of the accused to
discharge his burden under section 105 the material brought on the record may,
in the totality of the facts and cicumstances of the case, be enough to induce
in the mind of the Court a reasonable doubt with regard to the mens tea
requisite for an offence under section 299 of the Code".
the above legal position in mind, we scrutinised the evidence to ascertain
whether the deceased could have been the aggressor. Neither PW1 nor PW2 could
say how the occurrence started. The possibility that before they reached the
place, some events would have already taken place cannot be ruled out. PW1 and
PW2 over-heard the squeal of a pig. They also over-heard the sound of a
quarrel. When they reached the scene they saw the carcass of a slain pig lying
nearby. The motive suggested by the prosecution was sufficient for the deceased
as well to entertain animus towards second appellant. Further, both sides would
have confronted with each other on that morning abruptly without any prior
knowledge or inkling that deceased might go to the plantain grove at the
crucial time for answering the call of nature.
above circumstances are broad enough to instil reasonable doubt in our mind
that accused would have picked up a quarrel with the second appellant and then
the other events had followed. Law entitles the appellants to have benefit of
that reasonable doubt concerning the begining part of the occurrence and
renders them liable for culpable homicide not amounting to murder.
above are our reasons to alter the conviction to section 304 part 1 of IPC and
for imposing a sentence of rigorous imprisonment for seven years on each of