JUDGMENT
M. Karpagavinayagam, J.
1. Arokiam and Gnanaselvam, the appellants herein were convicted for the offence under Section 302 read with Section 34 I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs. 1,000/- each. Challenging the same, the appeal has been filed.
2. The facts leading to conviction are as follows:
” (a) A.1 Arokiam is the younger brother of A.2 Gnanaselvam. Their father Innasimuthu and the deceased Chinnappa are the brotheRs. The deceased is the junior paternal uncle of the accused. The accused were residing in Watrap Pudupatti village. The deceased Chinnappa along with his son Selvaraj was residing at Sethur, a small town.
(b) The disputed property is a hut belonged to Innasimuthu father of the accused. After his death, the said hut was in possession and enjoyment of the accused and their mother Ranjitham. The deceased claimed that the said hut belonged to him. Therefore, he asked the accused to vacate the hut, in order to give possession of the said hut to his son James. However, the accused refused to give possession stating that the property belonged to them.
c) The deceased gave a complaint to the Watrap Police Station and an enquiry was conducted by the police. After the enquiry, both parties were advised to settle the matter either through Panchayat or Civil Court. Though a panchayat was held, the accused did not oblige to the decision of the panchayatdars. The deceased Chinnappan brought building materials such as, sand and bricks and unloaded the same in front of the hut, in order to put up a new construction after demolishing the hut. On 5.1.1997, the deceased party approached the local Nattanmai and sought his assistance to take possession of the hut from the accused. Even then, the accused refused to hand over possession.
d) The occurrence took place on 6.1.1997. At about 7.45 a.m., the deceased along with his son P.W.1 Selvaraj and P.W.5, Ponraj, a carpenter came to the scene of occurrence. They were armed with hammer, Padlock, iron nails, cutting-plier, aruval and coconut reepers. At that time, Ranjitham the mother of the accused, was inside the house. The accused were having a petty shop in front of the house.
e) P.W.5 Ponraj, the carpenter put the lock in the hut and tried to patch the reeper. Noticing this, A.1 objected stating that that was a family dispute between the accused and their junior paternal uncle and so, he could go away. Accordingly, P.W.5 went away and the deceased himself came in front of the house and patched one reeper on the door.
(f) On seeing this, A1 and A.2 who were in the shop, shouted and questioned the act of the deceased. Therefore, the deceased went in front of the petty shop with M.O.3 hammer and questioned the accused as to how they could obstruct them as the house was belonged to him. P.W.2 Arokiam, at that time came there for purchase of pickles and after giving the pickles to P.W.2, A.1 took M.O.1 aruval which was kept in the shop and came near the deceased and gave a cut on the right leg of the deceased. A.2 took the aruval which was found in front of the hut and gave a cut on the head of the deceased. P.W.2 intervened, but he was threatened by the accused and both the accused gave indiscriminate cut on the body of the deceased and the deceased warded off the cut, with the result, he received cut on the hands also. The deceased due to the injuries, fell down on the ground and died on the spot. Then the accused ran away from the scene of occurrence with the weapons.
(g) On the advice of the local Nattanmai, P.W.1 rushed to Watrap Police Station and gave a complaint to P.W.10 Sub-Inspector of Police at about 8.30 p.m. Ex.P.1 is the complaint and Ex.P.16 is the F.I.R.
(h) On receipt of the message, P.W.11, Inspector of Police took up the investigation and proceeded to the scene of occurrence. He prepared Ex.P.19 rough sketch. He recovered M.O.3 hammer, M.O.4 reepers, M.O.5 padlock, M.O.9 cutting-plier, M.O.12 blood-stained earth, M.O.13 sample earth, etc. He conducted inquest on the body of the deceased. He prepared the Ex.P.20 Inquest Report. During the course of inquest, he examined P.Ws.1 to 3 and others.
i) Then the body was sent for post-mortem. P.W.7 Doctor on 6.1.1997 at 3.30 p.m. found as many as nine injuries. He opined that the deceased would appear to have died of shock and hemorrhage due to cut injuries sustained. Ex.P.9 is the post-mortem certificate.
j) On the very same day, A.1 surrendered before the police and on his confession, M.O.1 aruval was recovered. On 9.1.1997, P.W.11 arrested A.1 and in pursuance of the confessional statement of A.1, M.O.1 aruval was recovered. Then he sent the requisition to the Court to forward the materials for chemical examination. He filed charge-sheet against both the accused for the offence under Section 302 I.P.C.
k) During the course of trial, prosecution examined P.Ws.1 to 11, filed Exs.P.1 to P.22 and marked M.O.1 to M.O.20.
l) When the accused were examined under Section 313 Cr.P.C., they simply denied their complicity in the crime.
m) The trial Court accepting the prosecution case, convicted the accused for the offence, under Section 302 read with Section 34 I.P.C. and sentenced them thereunder. Challenging the judgment of conviction, both the accused has filed this appeal.
3. Mr. N.Mohideen Basha, learned counsel for the appellants would take us through the entire evidence and contend that the evidence of P.Ws.1 to 4 is quite artificial and would suffer from various infirmities and as such, their evidence cannot be relied upon. He would also point out from the evidence of the Investigating Officer, that the Inspector of Police came to the spot even prior to the receipt of the complaint given by P.W.1 and as such, the evidence of P.W.1 that he was present at the scene of occurrence at about 8.30 p.m. would not be true. Alternatively, it is submitted that even assuming that the entire case of the prosecution is true, the act of attack committed on the deceased by the accused is only by way of exercise of private defence and as such, the cause of death of the accused would not fall under Section 302 I.P.C. At the most, it would fall under Section 304 part-II I.P.C.
4. Refuting the above submissions, Mr. E. Raja, learned Additional Public Prosecutor while pointing out various portions of evidence, would submit that the evidence of P.Ws.1 to 4, which is corroborated by medical evidence, is clear and cogent and there is no reason to reject their evidence. In respect of the alternative argument, it is submitted that there are materials through the evidence of the eye-witnesses including P.W.1 that the property in dispute was in possession of the accused party and on that date, the occurrence had taken place when such possession was disturbed by the deceased party.
5. We have carefully considered the rival contentions of both the learned counsel for the appellant and the learned Additional Public Prosecutor and also gone through the records.
6. In regard to motive, the prosecution placed the materials through P.W.1 and P.W.9 Sub-Inspector of Police and Exs.P.14 and P.15, the statements given by the deceased party and accused party before the police. There is no dispute in the fact as seen from Ex.P.15 and the admission made by P.W.1, the son of the deceased that the property in question was in possession of the accused. It is the case of the prosecution that both of them approached police, who in turn, after enquiry, advised the parties to go and seek remedy through the Civil Court. Despite this advice, the deceased party came to scene village Watrap Pudupatti on 5.1.1997 and sought the assistance of local Nattanmai in getting possession of the hut from the accused. When this was informed to the accused, they refused to hand over the possession. In that context, the occurrence had taken place on the next day.
7. According to P.W.1, the deceased along with P.W.1 and P.W.5 the carpenter, went in front of the hut and P.W.5 put a lock on the door of the hut. On seeing this, both the accused objected to the same and asked him to go out, since it was a family dispute between themselves and their paternal uncle. Accordingly, P.W.5 went away. Then the deceased himself took a hammer and patched a reeper on the door of the house. When both the accused shouted objecting to this, the deceased, with the hammer, came in front of the shop and threatened both the accused stating that he would put the reeper in the house belonging to them and as such, they have no business to question that. At that juncture, A.1 took out the aruval and came near the deceased, and gave a cut on the leg of the deceased. When the deceased fell down, A.2 took another aruval kept in front of the house and gave a cut on the deceased. Then, both of them repeatedly inflicted injuries on various parts of the body, including the head of the deceased. The deceased died on the spot.
8. P.W.2 Arokiam who came to the petty shop of the accused to purchase pickles, had witnessed the occurrence. P.W.3 Arulappan, who was sitting in the tailoring shop, adjoining to the petty shop, had also witnessed the occurrence. P.W.4 Paralogamary who was selling paniyaram also happened to see that. The details of the occurrence have been clearly mentioned in Ex.P.1 complaint. The presence of P.Ws.1 to 3 was also mentioned in Ex.P.1 complaint.
9. There is no dispute that all the three witnesses were examined during the course of inquest. It is also seen from the First Information Report that the complaint was registered on 6.1.1997 at 8.30 a.m. and reached the Magistrate at 11.10 a.m. on 6.1.1997, i.e., on the same day. It is contended that P.W.1 would not have been present at the time of the occurrence, since P.W.5 did not specifically mention that P.W.1 also came. But this statement by P.W.5 cannot be a ground to reject the evidence of P.W.1 who is the author of the First Information Report in which the details of the presence of P.Ws.1 to 3 at the time of occurrence and also the fact some time earlier, they came along with P.W.5 for the purpose of taking possession of the property in question were furnished. Furthermore, P.W.5 is not the eye-witness to the occurrence.
10. A perusal of the evidence of P.Ws.1 to 4 would make it clear that their evidence is cogent and consistent and their testimony has been corroborated by the medical testimony of P.W.7, Doctor who conducted post-mortem. It is true that P.W.10 would admit that when Ex.P.1 complaint was obtained from P.W.1 at the police station, P.W.11 Inspector of Police, was present at the scene of occurrence. This is purely a mistake for the reason that the evidence of P.W.1 would show that he came to the police station and received the F.I.R. copy from P.W.10 and thereafter, P.W.11 came to the scene of occurrence.
11. Under those circumstances, we have no other reason to disbelieve the evidence of P.Ws.1 to 4. Furthermore, the tailoring shop which is situate adjoining the petty shop of A.2, wherein P.W.3 was sitting is also shown in Ex.P.19 rough sketch. As mentioned in Ex.P.1 complaint, P.W.11 came to the scene of occurrence and recovered M.O.3 hammer, M.O.5 padlock, M.O.8 key, M.O.12 blood-stained earth, M.O.13 sample earth etc., from the scene of occurrence. The availability of these M.Os. at the scene is noticed in rough sketch as well as the observation mahazar. Therefore, there is no valid reason placed before this Court to reject their evidence. Consequently, it has to be held that the prosecution has established its case .
12. The next question which comes before us for consideration is as to whether this case would fall under Section 302 I.P.C. or it would come under any one of the exceptions to Section 300 I.P.C.
13. Learned counsel for the appellants on the strength of various judgments rendered by this Court as well as the Supreme Court would submit that when any danger to his body or the property is expected, an accused can exercise the right of private defence to commit such offence to escape from the possible danger. The materials placed by the prosecution through P.W.9 Sub-Inspector of Police, who conducted enquiry on the petitions presented by both the deceased and the accused earlier, namely, Exs.P.14 and P.15 would clearly show that both were claiming the property as their own. On a perusal of Ex.P.15, it is clear that the sale deed was produced by the accused to show that the property was purchased by his father Innasimuthu and from then onwards, the property is in their possession. In view of the above document, both were advised to go to Civil Court. Despite that, as admitted by the prosecution that the deceased party came with the weapons like aruval, padlock and other things to put a lock to take forceful possession from the accused party. As a matter of fact, P.W.1 himself would admit that P.W.1 and the deceased approached Nattanmai and sought the assistance from him for taking possession from the accused. When the accused were not inclined to hand over the possession, the deceased on 6.1.1997 at about 7.30 a.m., came to the hut and tried to put the lock on the door. But when this was objected, the deceased himself came and patched a reeper on the door, thereby closing the entrance of the house. On seeing this, the accused shouted. Then the deceased came in front of the shop in which the accused were sitting and questioned them as to how could they challenge their act. Thereafter, their attack commenced. Thus, the evidence of P.W.1 and other witnesses would clearly show as indicated above, that even during the time of occurrence, the property in question was in the hands of the accused. In fact, P.W.1 admits that at the time of the occurrence, the mother of the accused was sitting inside the house. In that fact situation, the accused by way of exercising their right of private defence, took the aruval and then gave cut on the deceased, which resulted in the instantaneous death of the deceased. Therefore, in our view, the act committed by the accused would not fall under Section 302 I.P.C. On the other hand, it would attract Exception-2 of Section 300 I.P.C.
14. Consequently, on facts, we are to conclude that the accused had exceeded their right of private defence and caused serious injuries on the deceased. There are nine injuries and some on the head of the deceased. In those circumstances, we are of the view that the conviction under Section 302 read with Section 34 I.P.C. is not proper and the same is set aside. Instead, both the accused are convicted for the offence under Section 304 (part-I) read with 34 I.P.C. and sentenced to undergo seven years rigorous imprisonment.
15. With the above modification in the conviction and sentence, the appeal is dismissed.