Basavaraj & Ors.
No.1453 of 2005[
State by Inspector of
Police, Dharmapuri Police Station, Tamil Nadu Vs. Swamikannu & Ors.
No.1700 of 2005]
PRAKASH DESAI, J.
two appeals, by special leave, can be disposed of by a common judgment as they
challenge the judgment and order dated 14/3/2005 passed by the Madras High
Court in Criminal Appeal No.130 of 1997 filed by Swami Kannu, Basavaraj,
Kumaran, Kanagaraj and Gnanapazham (original accused 1 to 5 respectively) who
are hereinafter referred to as "A1" to "A5" respectively
Sessions Case No. 151 of 1993, A1 to A5 were charged for offence punishable
under Section 147 of the IPC. A2 and A4 were charged for offence punishable under
Section 148 of the IPC. A2 to A5 were charged for offence punishable under Section
341 of the IPC.
A1 was charged for
offence punishable under Section 149 read with Section 341, offence punishable
under Section 109 read with section 324 and offence punishable under Section 109
read with Section 302 of the IPC.
A4 was charged for offence
punishable under Section 324 of the IPC. A2, A3 and A5 were charged for offence
punishable under Section 149 read with Section 324 of the IPC. A2, A3 and A5
were charged for offence punishable under Section 323 of the IPC. A2 was charged
for offence punishable under Section 302 of the IPC. A3, A4 and A5 were charged
for offence punishable under Section 149 read with Section 302 of the IPC.
case of the prosecution needs to be narrated in brief.
to A5 are the sons of A1. PW-1 Pandurangan is the younger brother of deceased Ranganathan,
who was a former Member of Legislative Assembly. He was a member of ADMK
political party. He used to, inter alia, run a rice mill. A1 to A5 were residing
at Dharmapuri while the deceased was a resident of Madhikonpalayam Village. The
relations between the accused and the deceased were strained.
11/11/1992 at about 7.30 p.m. PW-1 Pandurangan, PW-4 Jabbar and one Nanjappan were
sitting near a bus stop at Dharmapuri. The deceased was also present. On seeing
A2, the deceased asked PW-1 to go and collect donation for organizing a meeting
at Dharmapuri in connection with the visit of a Minister. A2 refused to pay the
amount and made some disparaging remarks about the deceased.
The deceased got
annoyed and told him that if he is not willing to pay donation he may not pay
but he should not make such comments. A2 persisted in making comments and told
the deceased that he will finish him one day. PW-1 intervened in the quarrel. Thereafter,
the deceased and PW-1 got into a car and went to Madhikonpalayam.
They alighted near the
rice mill. They were discussing about the ensuing marriage of PW-1's son. At
about 1.15 p.m. PW-1 came out of the rice mill and saw A1 to A5 coming from the
east. On seeing PW-1, A2 to A5 held his hands and A1 instigated others to kill
him. A4 beat PW-1 with a cycle chain on his head, back of chest and left side of
the wrist. The others beat him with hands. PW-1 raised alarm. The deceased came
out of the rice mill and intervened.
A1 instigated his
sons to kill him. Thereafter A3 to A5 held the hands of the deceased and A2 stabbed
the deceased on the left side of his chest. The deceased fell down and all the
accused ran away. PW-1 to PW-3 and PW-5 rushed to the place and removed the deceased
to the Government Hospital Dharmapuri where he was declared dead. PW-1 then went
to Dharmapuri Police Station and lodged his FIR (Ex.P-1). A2 was arrested on 19/11/1992.
A3 was arrested on 20/11/1992. The other accused surrendered. After completion of
the investigation the accused were charged as aforesaid.
support of its case, the prosecution examined as many as 21 witnesses. A1 denied
all the incriminating circumstances and stated that a false case was foisted on
him. Version of A2 as evident from his statement under Section 313 of the Code of
Criminal Procedure (for short, "the Code"), is important and needs to
be stated. He admitted that there was a dispute between his family and the
family of the deceased.
The deceased and A1
belonged to different political parties. According to him, PW-1 did not ask for
any donation from A2. Donation was asked by a candidate from the political party
to which the deceased belonged and A2 made a remark that the amount, which has already
been collected, can be utilized for the meeting and the deceased should not use
such tactics. On 11/11/1992 the situation in Madhikonpalayam village was tense.
When he was going to
his father's house he learnt that he and his family members were going to be beaten
up by persons belonging to the deceased's political party and that at 9.30 p.m.
they are going to burn tyres and throw them on their rice mill. He, therefore,
asked his father and other members of his family to leave the house and take shelter
at a different place. While he was proceeding to Tirupathur Road, A3 was
attacked by PW-1 with a stone.
A3 ran away from the
place. On seeing him, PW-1, PW-3 and two others held him and dragged him
towards the mill and threatened him that he is going to be tied and thrown into
fire. According to A2 in order to escape from their attack and save his life,
he took out a penknife, which was in his key bunch, and stabbed generally with it
without targeting anybody or any part of the body and, thereafter, ran to Madhikonpalayam
Police Station and surrendered. A3 was at the Police Station.
A complaint was given
to the Police Officer about the burning of his rice mill but the Police Officer
did not record the said complaint. He also stated that the henchmen of the deceased
damaged their properties, but the police did not take any action against them because
they belonged to a particular political party. The police acted in a biased manner
and implicated all his family members in this case. He denied that A1 instigated
A4 to beat PW-1 with a cycle chain. He did not handover knife (M.O.-1) to the
police. A3 filed a written statement and took a similar stand.
trial court held A1 to A5 guilty under Section 147 of the IPC and sentenced each
one of them to simple imprisonment for one year. A1 was found guilty under 8Section
302 read with Section 109 of the IPC and sentenced to life imprisonment. A2 was
found guilty under Section 148 of the IPC and sentenced to 18 months simple imprisonment.
A2 was found guilty under Section 302 of the IPC and sentenced to life
imprisonment. A2, A3 and A5 were found guilty under Section 341 of the IPC.
Each one of them was sentenced
to 2 weeks simple imprisonment. A3, A4 and A5 were found guilty under Section 302
read with Section 149 of the IPC and each one of them was sentenced to life imprisonment.
A1 was found not guilty of offence punishable under Section 341 read with
Section 149 of the IPC and Section 324 read with Section 109 of the IPC.
He was acquitted of
the said charges. A2, A3 and A5 were held not guilty of offences punishable under
Section 324 read with Section 149 and Section 323 read with Section 34 of the IPC.
They were acquitted of the said charges. A4 was found not guilty of the charge
under Section 148 and 324 of the IPC, he was acquitted of the said charge. The substantive
sentences were directed to run concurrently.
High Court acquitted A2 holding that A2 had stabbed the deceased in exercise of
his right of private defence. The High Court further held that since A2 had stabbed
the deceased in exercise of his right of private defence, there was no question
of the other accused instigating him to stab the deceased. The High Court acquitted
all the other accused.
Appeal No.1700 of 2005 is filed by the State of Tamil Nadu and Criminal Appeal
No.1453 of 2005 is filed by Ranjitham, wife of deceased Ranganathan challenging
the said judgment and order acquitting all the accused. During the pendency of
these appeals A1 (Swami Kannu) has died. As against him the appeals have
for the appellants vehemently contended that the impugned order is perverse. Counsel
submitted that the High Court was wrong in accepting the argument that A2 attacked
the deceased in exercise of his right of private defence. Counsel submitted
that it is the accused who were the aggressors and, therefore, plea of private
defence could not have been raised by them.
that the High Court did not take note of the unassailable findings of trial court.
Counsel submitted that there is cogent and adequate evidence of eye-witnesses which
has been overlooked and, therefore, it is necessary to set aside the impugned
judgment and order.
for the accused, on the other hand, submitted that substantial part of the
prosecution story is disbelieved by the trial court. This being an appeal against
order of acquittal, this Court should be slow in disturbing the order of acquittal.
Counsel submitted that the evidence on record clearly establishes the theory of
right of private defence and, hence, the appeals deserve to be dismissed.
Counsel submitted that,
in any event, so far as A2 is concerned, intention to kill the deceased cannot be
attributed to him. He could be convicted only under Section 304 Part II of the IPC.
are dealing with an appeal against acquittal. We are mindful of the principles
laid down by this Court through a long line of judgments which guide a court
dealing with an appeal against an order of acquittal. Unless it appears to us that
the impugned judgment is perverse, we cannot interfere with it.
If the view taken by
the court acquitting the accused is a reasonably possible view, we cannot
disturb it because the presumption of innocence of the accused is strengthened by
the order of acquittal. If two views are possible on appreciating the evidence
and if the view taken by the acquitting court is a reasonably possible view we cannot
substitute it by the other view just because it appears to us to be a possible view.
Keeping these well established principles in mind we shall approach this case.
strained relationship between the family of the deceased and the complainant's family,
is admitted. They are related to each other. It is also apparent from the evidence
on record that the deceased belonged to ADMK political party and the
complainant's family belonged to the rival political party. In fact, the incident
in question is preceded by some discussion about collection of donation for the
expenses of the proposed meeting of a Minister.
the deceased was stabbed by A2 is admitted. A2 has taken up the defence of right
of private defence. In several decisions, this court has considered the nature of
this right. Right of private defence cannot be weighed in a golden scale and even
in absence of physical injury, in a given case, such a right may be upheld by the
court provided there is reasonable apprehension to life or reasonable
apprehension of a grievous hurt to a person.
It is well settled
that the onus of proof on the accused as to exercise of right of private
defence is not as heavy as on the prosecution to prove guilt of the accused and
it is sufficient for him to prove the defence on the touchstone of preponderance
of probabilities (See Sat Narain v. State of H aryana 1 ) . In V Subramani &
Anr. v. State of Tamil Nadu 2 , this Court examined the nature of this right. This
court held that whether a person legitimately acted in exercise of his right of
private defence is a question of fact to be determined on the facts and circumstances
of each case.
In a given case it is
open to the Court to consider such a plea even if the accused has not taken it,
but the surrounding circumstances establish that it was available to him. The burden
is on the accused to establish his plea. The burden is discharged by showing preponderance
of probabilities in favour of that plea.
The injuries received
by the accused, the imminence of threat to his safety, the injuries caused by
the accused and whether the accused had time to have recourse to public authorities
are all relevant factors to be considered.1 (2009) 17 SCC 1412 (2005) 10 SCC
A2 stabbed the deceased in exercise of his right of private defence will have to
be considered in the light of the above principles. The High Court while
holding that A2 exercised his right of private defence, accepted A2's explanation
that A2 had to stab the deceased because his properties were destroyed and henchmen
of the deceased dragged him with a view to tying him and throwing him into the fire.
The High Court has also
observed that PW-19 Inspector Selvaraj has admitted that during the incident, rice
mill of A2, home of A1 and property of A3 were burnt and though he received
information about the said incident at 3.30 a.m. on 12/9/1992, he did not register
the complaint. The High Court also noted that PW-16 Dr. Asokan has, after examining
A3, stated that he had found that A3 had sustained an injury.
This injury, which was
caused during the course of the same incident, has not been explained by the prosecution.
The High Court, therefore, concluded that A2 had reasonable apprehension that
death 15or grievous hurt will be the consequence of the acts of the deceased and
his people and, therefore, he stabbed the deceased in exercise of his right of
private defence. It is not possible for us to concur with the High Court on this
has stated in his evidence that the incident occurred near their rice mill. There
is no challenge to this statement. PW-19 Selvaraj, the Investigating Officer has
been cross-examined at length but no suggestion is put to him that the incident
of stabbing did not take place near the rice mill of the deceased. Thus, it is
clear that the accused had gone to the rice mill of the deceased. It is also pertinent
to note that as per certificate (Exh.13) issued by PW-14 Dr. Ramakrishnan, PW-1
had received simple injuries.
establish the right of private defence, the accused have not laid any evidence.
We have narrated, in detail, the gist of A2's statement under Section 313 of the
Code. Defence of A3 is also on similar lines. In short, A2's case is that prosecution
witnesses were aggressors.
According to him the
atmosphere in the village was tense and there was a threat that the rice mill
and properties of the accused would be set on fire by throwing burning tyres on
them and, in fact, the properties of the accused were set on fire. The police adopted
a partisan approach. They did not register the complaint. It is further stated
by A2 that while he was approaching Tirupathur Road, A3 received a stone injury.
He ran away. On seeing
A2, PW-1, PW-3 and others dragged him towards the mill and threatened him that
he is going to be tied and thrown into fire and, therefore, in order to escape from
the attack he stabbed with a penknife without targeting anybody. But the
evidence on record does not probabalise the defence version that the burning of
the properties of the accused was done before A2 stabbed the deceased.
PW-19 Inspector Selvaraj
has stated that he came to know at 3.30 a.m. on 12/11/1992 that the rice mill and
he properties of the accused were burnt. It is pertinent to note that as per FIR
(Annexure P-1) recorded on 12/11/1992, the incident took place at 10.15 p.m. on
11/11/1992. It is not clear as to when exactly the burning of properties of the
accused took place. It is possible, therefore, that the said incident was a reaction
to the murder of Ranganathan, the deceased.
There is, however, some
substance in the contention of counsel for the accused that the police did not
promptly register the complaint of the accused that their properties were
burnt. This is supported by the evidence of PW-18 S.I. Thangaraj and PW-19 Inspector
Selvaraj. We record our dissatisfaction about this inaction of the police. But,
this does not lead us to conclude that there was imminent threat to the
properties of the accused when the stabbing incident took place.
is true that A3 received injury during the course of this incident. But,
according to PW-16 Dr. Asokan, it was a simple injury. Its non-explanation by
the prosecution, in the 18facts of this case, does not have any adverse impact
on the prosecution case.
The fact that the
accused had gone to the rice mill of the deceased is a circumstance which needs
to be taken into account while considering the plea of right of private defence
and it makes an irreparable dent in the said plea. The High Court was, therefore,
clearly in error in drawing an inference that A2 stabbed the deceased in exercise
of his right of private defence. It is not possible for us to concur with this finding
of the High Court. In our opinion, to this extent, the High Court's finding is
perverse and needs to be set aside.
needs to be decided now is what offence has A2 committed. A2 has inflicted one stab
wound on the deceased with a penknife after an altercation between the two
sides. The blow landed on the chest, a vital part of the body of the deceased. The
question is whether A2 is guilty of murder or culpable homicide not amounting
Hari Ram vs. State of Haryana , there was an altercation between the appellant and
the deceased. The appellant had remarked that the deceased must be beaten to make
him behave. He thereafter ran inside the house, brought out a jelly and thrust it
into the chest of the deceased.
This Court observed that
in the heat of altercation between the deceased on the one hand, and the appellant
and his comrades on the other, the appellant seized a jelly and thrust it into the
chest of the deceased.
This was preceded by
his remark that the deceased must be beaten to make him behave. Therefore, it
does not appear that there was any intention to kill the deceased. This Court, therefore,
set aside the conviction of the appellant under Section 302 of the IPC and instead
convicted him under Section 304 Part II of the IPC and sentenced him to suffer
rigorous imprisonment for five years.
J agtar Singh vs. State of Punjab , in a trivial quarrel the appellant wielded a
weapon like a knife and landed a blow on the chest of the deceased. This Court observed
that the quarrel had taken place on the spur of the moment. There was exchange
At that time, the appellant
gave a blow with a knife which landed on the chest of the deceased and
therefore, it was permissible to draw an inference that the appellant could be imputed
with a knowledge that he was likely to cause an injury which was likely to
cause death but since there was no premeditation, no intention could be imputed
to him to cause death. This Court, therefore, convicted the appellant under
Section 304 Part II of the IPC instead of Section 302 of the IPC and sentenced him
to suffer rigorous imprisonment for five years.
H em Raj v. The State (Delhi Administration), the appellant and the deceased
had suddenly grappled with 4 1983 (2) SCC 3425 1990 (Suppl.) SCC 291 each other
and the entire occurrence was over within a minute. During the course of the sudden
quarrel, the appellant dealt a single stab which unfortunately landed on the
chest of the deceased resulting in his death.
This Court observed that
as the totality of the established facts and circumstances show that the
occurrence had happened most unexpectedly, in a sudden quarrel and without premeditation
during the course of which the appellant caused a solitary injury to the deceased,
he could not be imputed with the intention to cause death of the deceased,
though knowledge that he was likely to cause an injury which is likely to cause
death could be imputed to him.
This Court, therefore,
set aside the conviction under Section 302 of the IPC and convicted the
appellant under Section 304 Part II of the IPC and sentenced him to undergo rigorous
imprisonment for seven years.
V. Subramani, there was some dispute over grazing of buffaloes. Thereafter, there
was altercation between the accused and the deceased. The accused dealt a
single blow with a wooden yoke on the deceased. Altering the conviction from Section
302 of the IPC to Section 304 Part II of the IPC, this Court clarified that it
cannot be laid down as a rule of universal application that whenever death occurs
on account of a single blow, Section 302 of the IPC is ruled out. The fact
situation has to be considered in each case.
Thus, the part of the
body on which the blow was dealt, the nature of the injury and the type of the
weapon used will not always be determinative as to whether an accused is guilty
of murder or culpable homicide not amounting to murder. The events which
precede the incident will also have a bearing on the issue whether the act by which
death was caused was done with an intention of causing death or knowledge that
it is likely to cause death but without intention to cause death. It is the totality
of circumstances which will decide the nature of the offence.
deceased received a single stab injury. PW-15 Dr. Subramani, who did the
postmortem has described the said injury as a stab injury seen at the left
chest, that is, junction of second rib bone and chest bone. On internal examination,
he found that the injury had gone inside the left chest through the lungs into the
heart. Undoubtedly, the injury was serious and on a vital part of the body, but
it was caused by a penknife, which was in key bunch of the accused.
A key bunch is carried
by a person in routine course and a penknife is used for odd jobs, which a
person may be required to do during the course of the day. It is not possible
for us to say, in the facts of this case, that A2 had carried the penknife
which was in his key bunch to stab the deceased. The background of this case
also needs to be kept in mind. This case appears to have political overtones.
The accused and the
deceased belonged to different political parties. Admittedly, there was enmity between
the two sides. There had been an altercation between the deceased and PW-1 on the
one hand and the accused on the other hand. PW-1 had, at the instance of the
deceased, asked for donation from A2 and A2 is stated to have made some disparaging
remarks. The situation in the village was tense.
The accused had then
gone to the rice mill of the deceased. There again, there was an altercation between
the two sides. The circumstances on record clearly indicate that A2 stabbed the
deceased without premeditation, in a sudden fight in the heat of passion. His
case falls in Explanation 4 to Section 300 of the IPC. A2 knew that the act by
which the death was caused was likely to cause death but it appears to us that
he had no intention to cause death.
In the light of the
abovementioned judgments of this court, this in our opinion, is a fit case where
A2-Basavaraj should be convicted for the offence of culpable homicide not
amounting to murder and should be sentenced for five years rigorous imprisonment
under Section 304 Part II of the IPC. Needless to say that he must be given set
off for the period already undergone by him.
far as A1, A3, A4 and A5 are concerned, we are, however, of the view that the High
Court was right in acquitting them. PW-1, PW-2 and PW-3 are eye-witnesses. PW-1
has stated that A4 had levelled attack on his head, back and chest with a cycle
The cycle chain is
not recovered. PW-14 Dr. Ramakrishnan, who has examined him has stated that the
injuries suffered by PW-1 were simple injuries. PW-14 Dr. Ramakrishnan has
further stated that if the injuries suffered by PW-1 were caused by a cycle chain,
they would have caused imprint and he had not found any imprint injuries on PW-1's
So far as PW-2 is concerned,
he has rightly been disbelieved by the trial court because his name is not mentioned
in the FIR and the evidence of PW-1 and PW-3 do not establish his presence. PW-3
has given a version similar to that of PW-1. It is pertinent to note that though
PW-1 has stated that his clothes were stained with blood, no such clothes were recovered.
All this leads us to
conclude that the prosecution story narrated by PW-1, PW-2 and PW-3 about the use
of cycle chain to beat PW-1 has rightly been disbelieved by the trial court. A4
is, therefore, acquitted of charge under Section 324 of the IPC. Since charge
against A4 that he had attacked PW-1 with cycle chain has failed, the trial
court has acquitted A1 of the charge that he had instigated A4 to attack PW-1
with a cycle chain. Consequently A2, A3 and A5 have also been acquitted of offence
under Section 324 read with Section 149 of the IPC in respect of the alleged cycle
chain attack on PW-1.
It is observed that
they had no intention to attack PW-1 with a cycle chain. The evidence on record
clearly establishes that only A2 had a penknife in his key bunch. The other accused
did not have any weapon with them. The trial court has observed that the medical
evidence does not bear out the story that A2, A3, A5 had attacked PW-1 with hands.
Eye-witnesses have also not stated so.
Therefore, A2, A3 and
A5 have been acquitted of the charge under Section 323 read with Section 34 of the
IPC. The trial court has held that A1 had no intention to wrongfully confine PW-1.
He is, therefore, acquitted of charge under Section 341 read with Section 149
of the IPC. Having considered the evidence on record in depth, we are of the
considered opinion that so far as A1, A3, A4 and A5 are concerned, the
substratum of the prosecution story has given way.
To hold them guilty for
the stabbing of the deceased with the aid of Section 149 or to hold them guilty
of murder with the aid of Section 109 after setting aside their order of
acquittal, in our opinion, would not be proper because there is nothing perverse
about the High Court's order so far as their acquittal is concerned. In the
result, we pass the following order:
is convicted for culpable homicide not amounting to murder punishable under
Section 304, Part II of the IPC. For the said offence, he is sentenced to
suffer rigorous imprisonment for five years. Learned First Additional District Judge
and Chief Judicial Magistrate, Dharmapuri at Krishnagiri is directed to ascertain
whether A2-Basavaraj has undergone any sentence.
If he has already undergone
five years' sentence, then it is not necessary to arrest him. If he has
undergone less than five years' sentence, then he is directed to be taken in
custody so that he serves rest of the sentence. If he has undergone any
sentence, he is directed to be given set off for the same. In that case, after
completion of the sentence, he is directed to be released from custody unless he
is required in any other case.
are partly allowed in the afore stated terms.
(RANJANA PRAKASH DESAI)