@ Vijayakumar Vs. State Rep.by Inspector of Police  INSC 87 (22 March 1999)
D.P.Mohapatra Thomas J.
six persons arraigned before a Sessions Court for the murder of one Natarajan,
one alone was convicted and the rest were acquitted. The High Court of Madras
confirmed the conviction and sentence (imprisonment for life). His plea of
right of private defence was denounced by the trial court as well as the High
Court. The said sole convict, Vijayan, is the appellant before us.
5th of October, 1984
was an eventful day for the rival factions one of which the appellant belongs
to. A series of events took place on that day which ended up with the death of Natarajan
at about 2.30 pm. It gave rise to the present case.
and the defence were in substantial agreement regarding the narrative of the
events till the penultimate stage.
they differed grossly with each other regarding the final stage in which fatal
injury was inflicted on the deceased to which he succumbed in a few minutes.
following part of the story is, by and large, undisputed.
and his brother PW1-Kandaswamy were residents of a place called Edayankattuvalasu
in Erode town (Tamil Nadu). Their neighbour was Periyanna. He and his children
were residing in adjacent houses. Appellant Vijayan is one of the sons of Pariyanna.
All the houses of the above persons were on the southern side of a road (Nasianur
road) at Erode town.
and deceased Natarajan laid stone slabs over a drainage which passed through a
private passage leading to the houses of all the above persons. Those stone
slabs caused stagnation of water during rainy season and it affected Periyannas
building. So his sons requested the other party to remove the stone slabs. But
none of such requests was heeded to.
morning of 5.10.1984 appellant-Vijayan and his brothers forcibly removed those
stone slabs. On coming to know of it PW1-Kandaswamy along with his brother Natarajan
and father Kuppuswamy went to the house of Periyanna and questioned their act.
It led to an altercation during which one belonging to the appellants faction
slapped twice on the cheek of Kuppuswamy the father of PW1 and deceased. As
some neighbours intervened then PW1-Kandaswamy and deceased went back to their
house with Kuppuswamy. All those incidents happened before noon hours.
above events are not in dispute, but as to what happened thereafter we have
before us two diametrically divergent versions. According to the prosecution,
the following incidents happened thereafter:
about 2.30 pm the deceased Natarajan was walking
along Nasianur road towards east. He was followed by PW1 Kandaswamy, who was
followed by his father-in-law PW2-Chenniappan. As the deceased passed the house
of Periyanna six assailants emerged out of that house armed with knives, spear
and sickles etc. Sensing danger at the sight of the onrushing assailants Natarajan
made a right-about-turn and scampered towards west but the assailants chased
him and intercepted him and pushed him down. After he fell he was stabbed by
the appellant with a knife on the back and also on the front chest. Appellant's
brother Thilakan (second accused in the case) aimed a blow with a spear on Natarajan
but it missed the target and fell on the crown of appellants head who also fell
down. Deceased Natarajan who sustained a stab injury on the chest died at the
rival version, presented by the appellant, is the following:
about 2.30 pm deceased Natarajan and his brother
PW1- Kandaswamy accompanied by a gang of others went to the house of Periyanna
in retaliation for the forenoon incident. At the front portion of the house
they attacked the appellant which was resisted, but still the appellant
sustained injuries. It was then that appellant and others acted in self-defence.
support of the prosecution version PW1(Kandaswamy), PW2 (Chenniappan)
father-in-law of PW1 and PW3 (Poosappan) were examined. They supported the case
of the prosecution which they described in the same manner as it has been narrated
court and the High Court accepted their evidence and found the prosecution
story to be true.
certificate issued by PW6 (Dr. S.Velmurugan) showed that the deceased had two
injuries, one of which was a stab wound on the left chest which pierced the
upper lobe of left lung and the left pulmonary artery was completely cut. The
other injury was a stab wound on the left chest, but its depth was only 1 cm.
doctor has rightly opined that the first injury was necessarily fatal and the
injured could not have survived for more than a couple of minutes thereafter.
PW6 - Dr.S.Velmurugan,
a Civil Assistant Surgeon of Government Hospital, Erode, had deposed that
appellant Vijayan met him at 3 pm on 5.10.1984 with a lacerated injury (2 x ½ x
½) over the mid parietal region of the scalp, and some abrasions over the right
knee, right index finger and on the dorsum of the foot.
details of those injuries were written in Ex.P5 Accident Register. But the more
important aspect of the evidence of PW6-doctor is this: Appellant told him then
that he received those injuries at 2.45 pm at his own residence when three assailants assaulted him with pitchuva
and a screw driver.
defence side one Dr. Muruges (Radiologist in the Government Hospital), Erode) was examined as DW1. But
his evidence is not of much use because he said that the X-Ray did not reveal
any fracture for the appellant. Two more witnesses were examined for the defence,
one among them was a lady (DW2-Devaki) who said that she and PW3-Poosappan were
at Salem on 5.10.1984 afternoon for
execution of some documents in connection with a lorry transaction. She proved
Ex.D2, a sale receipt bearing the signature of PW3Poosappan dated 5.10.1984.
fact, when PW3-Poosappan was examined he was asked about the said lorry
transaction. Though he admitted having sold the lorry mentioned in that receipt
to DW2-Devaki he denied having gone to Salem on 5.10.1984 for that lorry deal.
PW3-Poosappan was present at Salem at 4.00 pm there is no doubt that he could not have been
present at Erode at 2.30
trial court and the High Court did not place reliance on Ex.D2- receipt nor on
the testimony of DW2- Devaki. Regarding that evidence High Court has observed
that it is also likely that the signature of PW3-Poosappan was obtained in
Ex.D2 much earlier with blank date and the document was got up on that
occasion. The reason for so holding is that PW3-Poosappan was recorded as
present at the scene of occurrence when the inquest was held by PW16-Investigating
Officer (The Inquest Report says that it was prepared between 5.00 pm and 8.00
pm on 5.10.1984).
above reasoning of the High Court was strongly assailed by Shri N.Natarajan, learned
Senior Counsel who argued for the appellant which he dubbed as putting the cart
before the horse because the very object of examining DW2-Devaki was to show
that PW3-Poosappan was not present at the scene of occurrence. It is contended
that if it could be inferred that PW3 would not have been present at Salem on
the premise that he was shown in the Inquest Report as present during the
inquest, it could as well be inferred from Ex.D2 receipt that PW3 would not
have been present at the scene of occurrence during the time of execution of
if could be made this way, it could be the other way around as well, contended
the learned counsel.
considering the evidence of DW2-Devaki, we have first to address ourselves
whether such an item of evidence is legally admissible.
153 of the Evidence Act is titled as Exclusion of evidence to contradict
answers to questions testing veracity.
main body of the Section reads thus:
a witness has been asked and has answered any question which is relevant to the
inquiry only in so far as it tends to shake his credit by injuring his
character, no evidence shall be given to contradict him; but, if he answers
falsely, he may afterwards be charged with giving false evidence." Section
153 is based on the decision rendered by Pollock CB in Attorney General v. Hitchock
(1847 (1) Ex.91) in which the learned Judge observed that a witness may be
contradicted as to anything he denies having said provided it be connected with
the issue as a matter capable of being distinctly given in evidence, or it must
be so far connected with it as to be a matter which, if answered in a
particular way, would contradict a part of the witnesss testimony, and if it is
neither the one nor the other of these, it is collateral to though in some
sense it may be considered as connected with, the subject of enquiry. The rule
limiting the right to call evidence to contradict a witness on collateral
issues excludes all evidence of facts which are incapable of affording any
reasonable presumption or inference as to the principal matter in dispute.
the above rule of prohibition has exceptions which can be discerned from the
Section itself. Among the four illustrations enumerated in the Section one of
them (illustration C) is relevant in this context which is extracted below: A
affirms that on a certain day he saw B at Lahore. A is asked whether he himself was not on that day at Calcutta. He denies it. Evidence is offered
to show that A was on that day at Calcutta. The evidence is admissible, not as contradicting A on a fact which
affects his credit, but as contradicting the alleged fact that B was seen on
the day in question in Lahore.
when the issue is whether PW3-Poosappan was present at the scene of occurrence
evidence can be offered to show that at the very time he was at a different
place. Evidence of that type is not aimed at shaking the credit of the witness
by injuring his character. It affects the veracity of the testimony
irrespective of his character.
at the evidence of DW2-Devaki from the above perspective, it is admissble in
evidence and hence the next question is whether it is a reliable item of
evidence. The High Court felt that it is not reliable mainly because of the
fact that PW3-Poosappan is recorded as present at the inquest which is shown to
have been held at 5.00
counsel for the appellant highlighted the fact that the name of PW3-Poosappan
was not mentioned anywhere in the First Information Statement lodged by
PW1-Kandaswamy. According to the learned counsel PW3 was a later addition to
the case. The FIR reached the magistrate concerned on the same night at 9.00 pm.
the Inquest Report was not sent along with it, perhaps it was not then ready
for despatch. But it was sent to the magistrate on the next day at 9.00 pm. Why it was sent to the magistrate at such an odd
time? That document is not like the FIR about which utmost promptitude is a
requirement of law for despatching to the magistrate. Learned counsel contended
that despatching the Inquest Report to the magistrate on the next day at 9.00 pm would, in the circumstances, only lead to the
inference that it would not have come into existence on the night of 5.10.1984.
the said contention can be accepted as correct or not, we are of the view that
authenticity of D2- sale receipt should not stand solely on the premise that
PW3-Poosappan was noted as present in the Inquest Report.
this context a vital circumstance, which the accused has brought on record, has
to be adverted to. DW3-photographer said that he was engaged by someone in the
house of Periyanna to take photographs of the inside of that house. On
5.10.1984 at 5.00 pm he took such photographs from
different angles. Ex. D3 and D4 series are those photographs. He said in
evidence that he then saw blood stains in the front portion of the house and in
the portico also. Ex.D5-Cash Bill dated 5.10.1984 marked through him shows the
amount collected by the witness for the work done. The Public Prosecutor who
cross-examined the witness suggested to him that what he saw on the floor of
the house was not blood marks but it could have been some chemical substance.
The said suggestion indicates that even the Public Prosecutor did not dispute
the fact that the photographer had taken the photos on 5.10.1984. However, the
suggestion that what he saw was only some chemical element seems to be too
baseless for countenance.
considering the right of private defence advanced by the appellant, the defence
version that deceased and his party had tress-passed into Periyannas house and
made a retaliatory attack for the forenoon incident has to be looked at. That
version of the appellant had come on official record at 3.00 pm when appellant told like that to PW6-Doctor. We do
not think that appellant would have had sufficient time to concoct a false
story to tell the doctor so soon after the incident.
the Investigating Officer came to know of such a version of the appellant one
would expect him to check up the house of Periyanna to see whether the said
version of the appellant was true. But PW16 did not produce any document
whatsoever to convince the Court that he did make such examination of the place
of occurrence as mentioned by the appellant at the earliest.
PW16-Investigating Officer made a bid to say that he inspected the house while
conducting a search on the same evening it cannot be believed for a moment
because no search memorandum was made, no search-list was drawn up and no
witness was collected to be present then. It is only the ipsi dixit of PW16
Investigating officer unsupported by even a scrap of paper that he inspected
the house of the accused.
apart, the injuries sustained by the appellant (extracted supra) were sought to
be explained by the prosecution in a very clumsy manner (in the FIR there is no
reference to the fact that the appellant sustained any such injury during the
giving evidence in the Court PW1 and other prosecution witnesses for the
occurrence said that appellant sustained those injuries when second accused Thilakan
aimed to inflict a stab injury on the fallen deceased but it miss-struck on the
crown of the head of appellant. Even assuming that second accused Thilakan
would have been a bad striker it is difficult to conceive that such an aim
fumbling whacking would have landed on the crown of another mans head.
poignant circumstance, which it is impossible to ignore, is the normal human
reaction for the forenoon incident. If father of the deceased was slapped then
craving for vengeance would definitely have been on the injured party of the
forenoon episode. When that circumstance is taken along with the other broad
circumstances adverted to above, the case of appellant that deceased and PW1
together with their henchmen had tresspassed into the house of the appellant
for a retaliatory onslaught, appears to be a probable story. Hence, we are
disposed to believe the defence version that deceased was the aggressor.
a contention has been advanced on behalf of the respondent that even in such a
situation appellant had exceeded his right of private defence, we reject the
contention because in the broad spectrum of the case it is not possible to
precisely measure the frontier up to which the right of private defence could
have been stretched.
are, therefore, inclined to give judicial imprimatur to the plea of right of
private defence advanced by the appellant and hold him not guilty of the
offence of murder. In the result we allow this appeal and set aside the
conviction and sentence passed on the appellant and acquit him. The bail-bond
will stand cancelled.