Murali
Vs. State of Tamil Nadu [2000] INSC 571 (14 November 2000)
U.C.Banerjee,
K.G.Balakrishnan
The
accused is in appeal against the conviction and sentence imposed by the High
Court in affirmation of the finding of guilt under Section 304 Part-I, IPC and
sentencing him to suffer rigorous imprisonment for five years. During the
course of hearing learned Advocate appearing for the respondent-State,
contended that the appeal should be restricted to the question of sentence
only: The learned Advocate appearing for the appellant however, contended that
question of treating the appeal in any restricted manner does not and cannot
arise by reason of subsequent grant of leave without attaching any condition
thereto. The records depict that on 20th March, 1998, this Court directed issuance of
notice limited to the question of sentence only. Subsequently, however, after
about eight months, the matter was placed in the list for hearing but by reason
of the objection this Court was pleased to grant special leave in the matter.
The learned Advocate appearing in support of the appeals contended that once
the leave has been granted the matter is open for all the issues to be agitated
otherwise the Court would have specified in the order itself while granting
leave. Reliance however has been placed on the decision of this Court in the
case of Harbans Singh v. State of Punjab [Criminal Appeal No.659 of 2000] which
inter alia is an authority for the proposition that the Leave, as granted by
this Court, is to be treated limited to the question of sentence only and as
such the appeals were directed to be heard on the question of sentence only.
The case of the prosecution as the record depicts appears that the deceased Vinayagam
purchased 2/3rd share in the Well as well as the pump- set belonging to the Pankal
(the accused). On the date of occurrence that is on 5th March, 1990 at about 6.15 p.m. the
deceased was in his Tea shop, the accused went there and according to the
prosecution stabbed on the stomach of the deceased. When PW 1 Gopal intervened,
the latter also suffered injuries. The prosecution case further goes on to
record that the accused dragged the deceased inside the room in the business
place and bolted the door from inside and thereafter assaulted on the head of
the deceased with iron pipe and stabbed him indiscriminately with a knife and
caused his death. Though, strictly speaking, there cannot be eye-witnesses
since the fatal blow was given admittedly inside the bolted room but
prosecution examined PWs.1,2 and 3 as eye-witnesses to the occurrence though
were present outside the room. The prosecution case however, further depicts
that the door was opened after some time by the accused and he came out of the
room with a blood-stained knife in his hand and the accused made his escape inspite
of resistance. It is only thereafter that the body of the deceased was
discovered in the room. The full factual analysis has been dealt with by the
trial judge as also the High Court and as such we need not deal with the same
in extenso, more so by reason of the fact that the appeals are heard on the
question of sentence only. Significantly one aspect of the matter which stands
high-lighted by the learned Advocate appearing for the respondent- State is
that circumstantial evidence as a matter of fact clinches the issue since there
is existing a categorical statement from PW 2 that the accused opened the door
and came out of the room and was holding Vinayagam with left hand and holding
the knife in his right hand. It is at that juncture that PW2 Sundaram took two
tender coconut which lay there and threw them at the accused, the accused
however moved aside and escaped. More or less identical is the deposition of
PW3 without any element of contradiction.
It is
on this piece of evidence that the learned State-Advocate contended that no
exception can be taken to the finding and the sentence passed by the Sessions
judge or the High Court. As a matter of fact, the Learned Additional Sessions
Judge has been quite lenient while dealing with the matter and has changed the
conviction from Section 302 IPC to Section 304 Part I, IPC and recorded a
punishment of five years rigorous imprisonment. The High Court however having
come to the finding that there is available clinching evidence to come to the conclusion
that the appellant has committed the offence together with an observation that
the Learned Judge has not properly appreciated the evidence, but since the
prosecution has chosen not to file any appeal against the order of the Sessions
Judge, the matter rested there. The learned Advocate appearing for the
accused-appellant, however, very strongly contended that the right of private defence
ought not to be taken away from the appellant-accused and both the courts fell
into error in not considering the right of defence available to an accused.
It has
been contended that the injuries on the body of the accused are all serious in
nature and hence the accused was entitled to a clear acquittal. In support of
his contention four several decisions have been cited and the first in the line
is the decision of this Court reported in the case of Dev Narain v. The State
of U.P. [1973 (1) SCC 347]. We need not
delve in to the details of the decision having regard to the point in issue
before the Court. The contextual facts are totally different and the decision
does not have any manner of application and as such we do not feel it expedient
to dilate on that score any further. The second is a decision of this Court in
the case of Wassan Singh v. State of Punjab [1996 (1) SCC 458] wherein this Court in paragraph 10 of the report,
upon reliance on two earlier decisions Mohd. Ramzani v. State of Delhi [1980
Supp. SCC 215] and Deo Narain v. State of U.P. [1973 (1) SCC 347] has been
pleased to observe that while judging the nature of apprehension which an
accused can reasonably entertain in such circumstances requiring him to act on
the spur of the moment when he finds himself assaulted, by number of persons,
it is difficult to judge the action of the accused from the cool atmosphere of
the Court room. It is on this contextual sphere that this Court held that the
appellant had a right of private defence of body which extended even to causing
the death and in exercise of that right if he fired one gunshot which
unfortunately killed an innocent person, it cannot be said that he was guilty
of an offence even under Section 304 Part-I, IPC on the ground that he had
exceeded his right of private defence. The factual situation here is different,
as such no reliance can be placed thereon also. The third in the line is the
decision of this Court in Chanan Singh v. State of Punjab [1979 (4) SCC 399]
wherein this Court was pleased to observe as follows: In short the High Court
has clearly found that the prosecution has not presented the true version of
the occurrence and it is not possible for the Court to find how the occurrence
originated and who was the aggressor.
Admittedly,
two persons on the side of the prosecution, namely, Gulzar Singh and Gurnam
Singh had suffered one grievous injury each, similarly five persons on the side
of the accused were also injured and two of them had grievous injuries. The
High Court also found that it was not a case of free fight. In these
circumstances, therefore, it is difficult to hold that the appellant fired a
shot from his gun merely to assault Gulzar Singh and not in self-defence
particularly when the appellant himself had many injuries, one of which was
grievous. It is true that the defence case also has not been accepted by the
High Court but once there is a probability of the accused having acted in elf-defence,
that is sufficient to entitle him to an acquittal. Mr.
Singh
tried his best to take us through the findings of the Sessions Judge in order
to satisfy us that it was a case of a free fight and, therefore, the appellant
could be convicted for individual assault. The High Court, however, has given
cogent reasons for disagreeing with the view of the Sessions Judge. Moreover,
as many as five accused persons were acquitted on the reasonings given by the
High Court and the State did not chose to prefer any appeal against the
judgment in this Court. The High Court having rejected the fundamental details
of the prosecution version and having held that the true version of the
occurrence was not presented by the prosecution, erred in upholding the
conviction of the appellant for an individual assault by reconstructing a new
case. In these circumstances, we are satisfied that the prosecution has not
been able to prove its case against the appellant beyond reasonable doubt. The
appeal is accordingly allowed. The conviction and sentence passed on the
appellant are set aside and he is acquitted of the charges framed against him.
A
perusal of the facts, as appears from the decision makes it clear the circumstances
under which the right of private defence is to be made applicable,
unfortunately the same is not available on the contextual facts. The accused
was found present at the Tea Stall being deceaseds place of business and as
such can be termed to be an aggressor and as such question of there being any
right of private defence does not arise. The definite evidence in the matter is
that the accused opened the door with a blood stained knife. The nature of his
injuries are not, however, sufficient by itself to sustain the plea of private defence.
As a matter of fact both, learned Sessions Judge and the High Court have negatived
such a plea and we do record our concurrence therewith. The injuries on the
accused are rather minor in nature since they were restricted to tender defusion
and abrasion. There is no wound, much less any serious injury which may even
prompt a person to take the most heinous step of committing the murder.
Reliance was also placed on the decision in the case of Vijayan alias Vijayakumar
v. State (represented by Inspector of Police) [1999 (4) SCC 36] wherein this
Court on the facts of the matter in issue and evidence on record was inclined
to give judicial imprimatur to the plea of right of private defence advanced by
the appellant and held him not guilty and granted pardon. Right of private defence
undoubtedly, a defence available to an accused but the Court while dealing with
the defence, ought to act with proper circumspection and caution, since the
same is an exception rather than a rule. At the cost of repetition, we do feel
it inclined to state that none of the decisions noticed above do not in any way
render any assistance to the learned Advocate appearing in support of the
appeals. On the wake of the aforesaid, we do not find any merit in these
appeals. The appeals, therefore, fail and are dismissed.
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