Kumar & Ors Vs. State of Tamil Nadu  Insc 278 (5 May 2006)
Sinha & P.P. Naolekar
APPEAL NO. 1174 OF 2005 Selvakumar . Appellant State of Tamil Nadu & Ors. .
Respondents S.B. SINHA, J. :
appellants herein, namely, Ashok Kumar, Sankar and Babu (in Criminal Appeal No.
1533 of 2004) and Selvakumar (in Criminal Appeal No. 1174 of 2005) (A-1, A-3,
A-4 and A-2 respectively) along with their father Chakravarti Nayinar (A-5),
mother Gunasekariammal (A-7) and uncle Rajan (A-6) stood trial for commission
of offences under Sections 147, 148, 341, 447, 302 read with Section 109 read
with Section 149 of the Indian Penal Code (IPC), inter alia, for causing death
of one Kumararaja.
accused as also the deceased Kumararaja were residents of Ammeri Village, Taluk Gingee. They had their agricultural lands in the
said village. The accused were claiming share of the land belonging to said Kumararaja.
They had allegedly been causing disturbances in the possession of the lands
belonging to Kumararaja as a result whereof some criminal cases were pending
against A-5 and A-6. A-5 and A-6 with a view to attend the said criminal cases
left the village at about 6.00 a.m. on
had allegedly instructed the appellants before leaving the village to see that
the deceased did not plough the land in question and if despite warning he
would do so he should be killed. At about 8.30 a.m., the deceased Kumararaja went to the said land and began ploughing the
same which was objected to by the appellants herein. He reported the matter to Elanchziyan
(PW-1) and Devabalan (PW-2) who advised him to convene a Panchayat so that the
dispute between the parties may be settled, in response whereto the deceased
allegedly told them that the matter need not be referred to Panchayat as the
land belonged to him. He had, therefore, requested both the said PWs to
accompany him to the land in question and ask the appellants not to cause any
obstruction in his ploughing the land. They complied with the said request of
the deceased. Further case of the prosecution is that as soon as the deceased
entered into the disputed land and tried to plough, Gunasekariammal (A-7)
allegedly brought four Koduval knives and handed over each one of them to the
appellants and instigated them to kill the deceased whereupon they attacked the
deceased. The deceased fell down. PW-1 and PW-2 cried out seeing the incident
whereupon they were also threatened. Thereafter, they ran away with the
weapons. PW-1 and PW-2 came near the deceased and found Kumararaja dead. The
village came within the jurisdiction of Valathi Police Station. It was situated
at a distance of about 8 kms. from the village. PW-1 walked all the way to the
Police Station. He reached the police station at about 11.30 a.m. At that time, Head Constable Ansar Sherif (PW-10)
was present. He was although attached to Gingee Police Station, at the relevant
point of time having been instructed by Inspector Mohan Doss Michael (PW-11),
he was performing his duties at the Valathi Police Station. Head Constable (PW-
10) recorded the statement of PW-1. A copy of the First Information Report was
sent to the Inspector (PW-11) who came to the scene of occurrence at about 12.30 p.m. In the meantime, PW-1 and PW-2 had also reached the
place of occurrence. The statements of PW-1, PW-2 as also of those who were
witnesses to Mahazar were recorded. Post-mortem examination on the dead body
was conducted by Dr. Marimuthu (PW-9) on 30.10.1993.
following injuries were found on the dead body of the deceased:
(cut wound) across the top of the head, 15'x4'.0 in deep in brain, brain
incised to about 1 cm depth, subdural haematoma about 100 cc on the left
wound in the midline of the head 8' x 2' on brain deep.
wound on the right side parental area 17' x 2' x 1-1/2' cm.
incised wound on the left side involving 7x2x1 cm.
incised would on the right side frontal area, 4x1x1 cm.
Cut injury with
clear margin on the left hand running through distal ends of the 2,3,4 &
5th bones removing (amputating) 2, 3, 4 & 5th bone. Skin is attached to
main part of the hand.
abrasion on the left shoulder 15x1 cm.
Abrasion on the
left side neck 4x1 cm.
Abrasion on the
back of right forearm 2x1 cm.
to the doctor (PW-9), the injuries were ante-mortem in nature and were possible
to have been caused by a sharp-edged knife or Koduval knife.
completion of the investigation, a charge sheet was filed against all the
the learned Sessions Judge, inter alia, a plea was taken that another First
Information Report had been lodged in regard whereto an entry had been made in
the General Diary. However, the same had not been produced. The learned Sessions
Judge upon consideration of the evidences brought on record including those of
the eye-witnesses, namely, PW-1 and PW-2 found the prosecution case to have
been proved beyond all reasonable doubt and recorded a judgment of conviction
against all the accused persons.
appeal being preferred before the High Court, the High Court did not believe
that part of the prosecution case involving A-5 and A-6 who admittedly had left
the village at 6.00 a.m. on 29.10.1993 as also that of A-7 who allegedly had
come to the scene and distributed the weapons to the appellants herein. They
were, therefore, acquitted. During the pendency of the appeal before the High
Court, A-6 expired and his appeal thus was held to have abated. The appeal
filed by the appellants herein before the High Court, however, was dismissed.
Krishnamurthy, the learned counsel appearing on behalf of the appellants, in
support of the appeals, inter alia, submitted that keeping in view the genesis
of the occurrence it was obligatory on the part of the prosecution to prove
that the land in question belonged to the deceased.
our attention to the statements made by the Investigating Officer, the learned
counsel would submit that admittedly no witness was examined to establish the
ownership and possession of the deceased over the land in question and the
prosecution cannot be said to have proved its case. It was further submitted
that the General Diary having not been produced, which was called for by the
appellants with a view to show that another Report had also been lodged prior
to the lodging of the First Information Report by PW- 1 and the same having not
been produced by the prosecution, an adverse inference ought to have been drawn
by the learned courts below. Mr. Krishnamurthy urged that the prosecution has
further not been able to prove that the Head Constable PW-10 who was admittedly
attached to the Gingee Police Station, was at the relevant point of time asked
by the Inspector PW- 11 to perform his duties at Valathi Police Station. It was
furthermore contended that the High Court committed a serious error in placing
reliance upon the evidence of PW-1 on the premise that he was a disinterested
witness and had nothing to do with the dispute between the parties although it
had been brought on record that the younger sister of the deceased was married
to his sister's son. The learned counsel urged that in a case of this nature
where the title of the land was disputed, the learned courts below should have
considered the question as to whether in a situation of this nature the
appellants could have exercised their right of private defence in regard to the
not in dispute that both the parties were related to each other, the deceased
being a co-parcener of the appellants. It is furthermore not in dispute that
the parties had been disputing over the ownership of the land.
appellants had been disputing the absolute ownership of the deceased in regard
to the land in question on the ground that they were also co-owners thereof.
PW-1 was, thus, related to both the parties. Nothing has been brought on record
to show that he had anything to do with the land in question and for one reason
or the other he would side with the deceased.
also not been established that PW-1 was otherwise inimically disposed toward
the accused. Both PW-1 and PW-2 made categorical statements to the effect that
they had gone to the scene of occurrence with a view to prevent the appellants
from causing obstructions to the ploughing of land by the deceased. They were
requested to do so by the deceased. In fact, PW-1, as would appear from his
evidence, advised the deceased to take the matter to the Panchayat so that the
dispute between the parties could be resolved.
not pay any heed to his advice and insisted that he had a right to plough the
land as the same belonged to him. PW-1, in his deposition, made detailed
statements as to how and in what manner the deceased was attacked with knives
by all the appellants. He had furthermore stated the manner in which the
injuries were caused to the deceased by each one of them. He had also
identified the weapons of assault in Court. The statements made by the said
witness stand corroborated by the medical evidence. PW-2 also supported him in
all material particulars. The fact that he was the author of the First
Information Report is not disputed. Having found the deceased to have expired
at the place of occurrence, he only went to his house for putting on his shirt
and started for the police station. He had to walk 8 kms. Three hours must have
been taken to reach the police station. It has further not been denied or
disputed that the Investigating Officer (PW-11) reached the place of occurrence
at about 12.30 p.m. on the same date and started investigation.
The statement of PW-10 who recorded the First Information Report has also been
taken by the Investigating Officer.
be true that the Investigating Officer might not have made any investigation as
regards the ownership of the land, but from his evidence it is evident that he
had been informed and proceeded on the basis that the land in question had been
in possession of the deceased. The prosecution story is that the deceased had
been ploughing the land and thus his possession thereover cannot be disputed.
PW-11 had drawn a rough sketch which was marked as Ex. P.13. Sl. Nos. 1 to 7 of
the said sketch indicate the land of the deceased and his brother Raj Kumar and
Sl. No. 3 thereof indicates the place where the dead body was found being
Survey No. 12/6. The learned trial Judge has categorically arrived at a finding
that from the evidence on record it was established that the occurrence took
place on the land of the deceased being Survey No. 12/6 in the centre of Kumararaja's
Karambu land, Kumararaja's own land being situated on the West of that land and
shown in Sl. No. 4 of the said sketch (Ex. P.13).
Investigating Officer on the date of occurrence did not find the appellants in
the village. They were arrested after a few days from another village.
appellants herein before the court below did not contend that they had been in
possession of the land. If they intended to raise a right of private defence in
regard to the property, it was for them to prove that they were in possession
of the land and the deceased trespassed thereinto. No contention as regard the
exercise of right of private defence in regard to their person had thus been or
could be raised.
Hafiz vs. State of U.P., (2005) 12 SCC 599, this Court
categorically observed :
may be true that the right of private defence need not specifically be taken
and in the event the court on the basis of the materials on record is in a
position to come to such a conclusion, despite some other plea having been
raised, that such a case had been made out, it may act thereupon. .
destructive defences taken by the accused persons would also go a long way to
disbelieve their story. " The deceased was not armed and was all alone
when he first started ploughing the land. Only when he was obstructed from
doing so, he approached PW-1 and PW-2. Evidence of PW-1 appears to be natural.
He is not only said to be an eye-witness, he walked all the way to the police
station to lodge the First Information Report as public transport was not
available. In the First Information Report, he categorically stated that PW-2
was also an eye-witness. The Investigating Officer (PW-11) had also found the
injuries on the person of the deceased. Despite some minor contradictions, both
the trial Judge and the High Court placed reliance upon the evidence of PW-1
and PW-2. We do not find any reason to differ with their opinion.
of Mr. Krishnamurthy that another First Information Report was also lodged earlier,
is based only on a suggestion made to PW- 10. PW-10, in his deposition,
categorically denied that even before lodging the complaint Ex.P.1, another
complaint was lodged at Valathi Police Station. It is true that the learned
trial Judge had recorded a contention raised on behalf of the accused that
despite an application having been filed by the accused, the prosecution had
failed to produce Case Diary and General Diary relating to the date of
occurrence of the Valathi Police Station. When however questioned, the learned
counsel could not point out from the records of the case that any such
application was filed by the accused or any order had been passed by the
learned trial Judge calling for the General Diary from the police station. The
question of drawing an adverse inference against the prosecution for
non-production of the Case Diary or the General Diary would have arisen had the
Court passed an order being satisfied that the prosecution intended to suppress
some facts which were material for the purposes of arriving at the truth or otherwise
of the prosecution case. If no such application had been filed and no order
thereupon had been passed by the Court, the question of drawing any adverse
inference against the prosecution would not arise. We have noticed hereinbefore
that PW-10 made a categorical statement to the effect that prior to the lodging
of the First Information Report, no other Report had been lodged. If that be
so, the question of production of any document did not arise unless it had been
pointed out by the accused with reference to the number or the person who made
such report as to the existence or recording of any other case in the General
Diary. Even no suggestion to that effect has been given to PW-1. We, therefore,
have no hesitation to reject the said contention.
for the reasons aforementioned, of the opinion that the learned trial Court and
the High Court having considered the prosecution case from all angles, no case
has been made out for our interference therewith. The appeals are, therefore,