BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07/08/2009
CORAM
THE HONOURABLE MR.JUSTICE A.SELVAM
Crl.A.(MD) No.128 of 2004
1.Pooluthevar
2.Marutha Vinayagam
3.Viswanathan
4.Selva Vinayagam
5.Murugan . . . Appellants/
Accused 1 to 5
Vs.
The State rep. by
the Inspector of Police,
Murappanadu Police Station,
Thoothukudi District.
(Crime No.11 of 1996) . . . Respondent/
Complainant
Criminal appeal is filed under Section 374 of Cr.P.C. against the
judgment dated 28.09.2004 passed in S.C.No.278 of 1999 by the Additional
Sessions cum Fast Track Court No.I, Tuticorin.
!For appellants ...Mr.R.Anand
^For respondent ...Mr.Siva Ayyappan,
Government Advocate,
(Criminal side)
:JUDGMENT
The conviction and sentence passed in Sessions Case No.278 of 1999 by the
Additional Sessions cum Fast Track Court No.I, Tuticorin are now under challenge
in the present criminal appeal.
2.The epitome of the prosecution case is that the complainant by name
Murugan is a resident of Vallanadu and now he is the union chairman of the
Karungulam and at the time of occurrence, he served as maestri in M.K.M. Chamber
and he knows all the accused. The primary work of the complainant is to get
soil from other places to the said chamber. The second accused viz., Maruth
Vinayagam has been known to the complainant with regard to selling of soil. On
21.01.1996 at about 8.00 a.m. the complainant has gone to Chennalpatti Village
for taking soil through the lorries bearing Registration No.TN-72-9732 & MDD-
9732. The second accused is the owner of the Manikandan Rice Mill. Near the
said Rice Mill, all the accused with deadly weapons have deterred the said
lorries. The complainant has questioned the accused. The accused 1 & 2 have told
that the complainant and others should not take soil. The complainant has told
them that already an agreement has been entered into with regard to taking of
soil. The accused 1 & 2 have directed the accused 3 to 5 to murder the
complainant. The third accused by name Viswanathan has attacked on the left
heel of the complainant by using an aruval. The fourth accused by name Selva
Vinayagam has tried to attack on the head of the complainant, but the said
attack has caused injury on his backside. The fifth accused viz., Murugan has
attacked on the right upper thigh of the complainant twice. After occurrence,
the complainant has been taken to Government Hospital, Palayamkottai and at
about 11.00 a.m. one Head Constable has recorded a statement from the
complainant and the same has been marked as Ex.P1.
3.On receipt of Ex.P1, complaint, the investigating agency has done
investigation and after completing the same, laid a final report on the file of
the Judicial Magistrate Court, Srivaikundam and the same has been taken on file
in P.R.C.No.40 of 1996. The case has been committed to the Court of Sessions,
Tuticorin Division and subsequently transferred to the file of the trial Court.
4.The trial Court, after considering the alleged culpability of all the
accused and other connected documents has framed first charge against the
accused 1 to 5 under Section 148 of the Indian Penal Code, second charge against
the accused 1 to 5 under Section 341 of the Indian Penal Code, third charge
against the accused 3 to 5 under Section 307 of the Indian Penal Code and fourth
charge against the accused 1 & 2 under Sections 307 read with 149 of the Indian
Penal Code and the same have been read over and explained to them. The accused
have denied the charges and claimed to be tried.
5.On the side of the prosecution, PWs.1 to 17 have been examined and
Exs.P1 to P10 and MOs.1 to 4 have been marked.
6.When the accused have been questioned under Section 313 of the Code of
Criminal Procedure, as respects the incriminating circumstances appearing in
evidence against them, they denied their complicity in the crimes. However no
oral and documentary evidence have been let in on their side.
7.The trial Court, after perpending the evidence available on record has
found the accused 1 to 5 guilty under Sections 148 of the Indian Penal Code and
sentenced them to undergo six months rigorous imprisonment and also imposed a
fine of Rs.500/- upon each of them with default clause. The accused 1 to 5 are
also found guilty under Section 341 of the Indian Penal Code and sentenced to
undergo six months rigorous imprisonment and also imposed a fine of Rs.500/-
upon each of them with default clause. The accused 1 & 2 are found guilty under
Sections 307 read with 149 of the Indian Penal Code and sentenced to undergo two
years rigorous imprisonment and also imposed a fine of Rs.1500/- upon each of
them with default clause. The accused 3 to 5 are found guilty under Section 307
of the Indian Penal Code and sentenced to undergo three years rigorous
imprisonment and also imposed a fine of Rs.3,000/- upon each of them with
default clause. Against the conviction and sentence passed by the trial Court,
the present criminal appeal has been filed at the instance of the accused as
appellants.
8.The crux of the prosecution case is that on the date of occurrence, the
complainant by name Murugan has served as Maestri in K.K.M.Chanmber and
proceeded to Chennalpatti Village so as to take soil through the lorries bearing
Registration Nos.TN-72-9732 and MDD.9732 and an agreement has been in existence
with regard to taking of soil from the place of the second accused viz., Marutha
Vinayagam and near his Rice Mill all the accused have deterred the said lorries
with deadly weapons. The complainant has questioned them and the accused 1 & 2
have directed the other accused to murder the complainant and in pursuance of
their direction, the accused 3 to 5 have attacked the complainant and thereby
caused injuries on his person.
9.The entire case of the prosecution hinges upon Ex.P1, complaint, wherein
it has been clearly stated that in the place of occurrence, the accused 1 & 2
have directed the remaining accused to attack the complainant and the remaining
accused have attacked the complainant by using deadly weapons.
10.Before considering the argument advanced by the learned counsel
appearing for the appellants/accused, the Court has to analyse as to whether the
prosecution has established the guilt of the accused as alleged on its side.
11.The author of Ex.P1, complaint has been examined as PW1. He has
clearly stated in his evidence that on 21.01.1995 at about 8.00 a.m. he and
others have proceeded to Chennalpatti Village for taking soil through the
lorries bearing Registration Nos.TN-72-9732, MDD.9732 and near the Rice Mill of
the second accused all the accused have deterred the said lorries with deadly
weapons and the accused 1 & 2 have directed the accused 3 to 5 to murder him and
accordingly the third accused has attacked on his left heel by using an aruval
and the fourth accused has tried to attack on his head by using an aruval, but
the said attack has caused injury on his backside and the fifth accused has
attacked on his right thigh twice by using an aruval.
12.One of the eyewitnesses by name Marimuthu has been examined as PW2. He
would say in his evidence that on 21.01.1996 at about 8.00 a.m. he and others
have proceeded to Chennalpatti village for taking soil and he has heard a queer
noise and subsequently found the complainant with injuries.
13.One Chokkalingam has been examined as PW4. He would say in his
evidence that on 21.01.1996 while he has been in his tea shop, the accused 3 to
5 have attacked the complainant in the place of occurrence.
14.One of the eyewitness by name Father has been examined as PW8. He
would say in his evidence that in the place of occurrence, the accused 3 to 5
have attacked the complainant by using aruvals.
15.The Doctor who has seen the complainant viz., PW1 deposed evidence as
PW15. He has also stated in his evidence that on 21.01.1996 at about 9.15 a.m.
he examined the complainant and he reported to him that on the same day, at
about 8.10 a.m. in Chennalpatti village he has been attacked by 5 known persons
by using aruvals and sticks, and he found four injuries on his person.
16.From the evidence of PW1 and other eyewitnesses coupled with the
evidence of PW15, the Court can safely come to a conclusion that in the place of
occurrence, the accused 1 & 2 have directed the accused 3 to 5 to murder the
complainant and in pursuance of their direction, the third accused has attacked
on the left heel of the complainant by using an aruval and the fourth accused
has attacked on his backside by using an aruval and the fifth accused has
attacked on his right thigh twice and due to overtacts alleged to have been
committed by the accused 3 to 5, PW1 has sustained injuries on his person.
17.The learned counsel appearing for the appellants/accused has attacked
the conviction and sentence passed by the trial Court on the basis of the
following grounds;
a)In Ex.P1, complaint it has been stated that before occurrence, the
complainant has alighted from the lorry, whereas in the evidence of PW1 it has
been stated that the entire occurrence has taken place while he has been in the
lorry and therefore, the entire case of the prosecution is liable to be
rejected.
b)The specific evidence of PW1 is that the accused 3 to 5 have attacked
him by using deadly weapons, whereas he reported to PW15 that he has been
attacked by five known persons by using aruvals and sticks and on that score
also, the entire case of the prosecution is liable to be thrown out.
c)PW4 one of the eyewitnesses has admitted in his evidence that due to
election, a motive is in existence between him and accused and therefore, his
evidence cannot be believed in.
d)Even assuming without conceding that in the place of occurrence, the
accused 1 & 2 have directed the remaining accused to attack the complainant,
since no agreement has been produced with regard to taking of soil from the
place of the second accused, the second accused is entitled to get private
defence with regard to his property.
18.The first and foremost ground urged on the side of the
appellants/accused is that in Ex.P1, it has been clearly stated that before
occurrence, the complainant viz., PW1 has alighted from the concerned lorry and
subsequently the occurrence has taken place, whereas in the evidence of PW1, it
has been stated that the entire occurrence has taken place while he has been in
the concerned lorry.
19.At this juncture, the learned Government Advocate (criminal side) has
befittingly drawn the attention of the Court to the decision reported in 2009(1)
Crimes 479 (1) Crimes 479 (Supreme Court) (Mani @ Udattu Man and others Vs.
State rep. by the Inspector of Police) wherein the Honourable Apex Court has
held that the maxim “falsus in uno falsus in omnibus” has no application in
India. Where chaff can be separated from grain, it would be open to the Court
to convict an accused notwithstanding the fact that evidence has been found to
be deficient, or to be not wholly credible.
20.In the instant case, as rightly pointed out on the side of the
appellants/accused, in Ex.P1 it has been clearly stated that before occurrence,
PW1 has alighted from the concerned lorry and subsequently the occurrence has
taken place, but PW1 in his evidence has clearly stated that the entire
occurrence has taken place while he has been in the concerned lorry. Whether
the occurrence has taken place out side the concerned lorry or inside the same,
the only aspect that has to be looked into is as to whether in the place of
occurrence, as per the alleged direction of the accused 1 & 2, the accused 3 to
5 have attacked the complainant viz., PW1.
21.It has already been pointed out that the evidence of PW1 has been
clearly corroborated by the evidence of PWs.4, 8 & 15. Since the occurrence
alleged on the side of the prosecution has been clearly proved through the said
witnesses, the Court can eschew the flimsy contradictions found in Ex.P1 and in
the evidence of PW1 and further as per the decision referred to supra, if a
witness gives false evidence with regard to one aspect, his entire testimonies
cannot be discarded and further the primordial duty of the Court is to sift the
chaff from grain. Under the said circumstances, the first and foremost ground
urged on the side of the appellants/accused goes out without merit.
22.The second ground urged on the side of the appellants/accused is that
the specific evidence of PW1 is that the accused 3 to 5 have attacked him by
using deadly weapons, whereas he reported to PW15, Doctor that in the place of
occurrence he has been attacked by 5 known persons by using aruvals and sticks.
23.In the instant case, five accused have involved in the occurrence. The
consistent evidence of PW1, PW4 & PW8 are that in the place of occurrence, the
accused 3 to 5 have attacked PW1 by using aruvals. Since five accused have
taken part in the occurrence, probably PW1 might have stated that he has been
attacked by five known persons in the place of occurrence and that itself would
not militate the case of the prosecution. Therefore, the second ground urged on
the side of the appellants/accused is of no use.
24.The third ground urged on the side of the appellants/accused is that
PW4, one of the eyewitnesses has stated in his evidence that he is having motive
with regard to election against the accused and therefore, his evidence cannot
be believed in.
25.Of-course, it is true that PW4 has clearly admitted in his evidence
that he is having motive with regard to election against the accused. It is an
everlasting principle of law that the evidence of a witness who is having motive
against the accused should be looked into very cautiously and if his evidence is
corroborated by other witnesses, his evidence can be relied upon.
26.In the instant case, apart from the evidence of PW4, the prosecution
has adduced reliable evidence through PW8, one of the eyewitnesses. Therefore,
simply on the basis of alleged motive, the evidence of PW4 cannot be
disbelieved. Under the said circumstances, the third ground urged on the side
of the appellants/accused goes out without merit.
27.The fourth point urged on the side of the appellants/accused is that
even assuming without conceding that in the place of occurrence the accused 1 &
2 have directed the remaining accused to attack the complainant, since no
agreement has been produced with regard to taking of soil from the place of the
second accused, the second accused is entitled to get private defence with
regard to his property.
28.In support of fourth ground, the learned counsel appearing for the
appellants/accused has drawn the attention of the Court to the decision reported
in 2003 Supreme Court Cases (Cri.) 16 (Sekar @ Raja Sekharan Vs. State rep. by
the Inspector of Police, T.N.) wherein the Honourable Apex Court has held as
follows;
“Under Section 105 of the Evidence Act, burden of proof is on the accused
who takes the plea of self-defence, and, in the absence of proof, it is not
possible for the Court to presume the truth of the plea of self-defence. The
Court shall presume the absence of such circumstances, It is for the accused to
place necessary material on record either by himself adducing positive evidence
or by eliciting necessary facts from the witnesses examined for the prosecution.
An accused taking the plea of right of private defence is not required to call
evidence; he can establish his plea by reference to circumstances transpiring
from the prosecution evidence itself. The question in such a case would be a
question of assessing the true effect of the prosecution evidence, and not a
question of the accused discharging any burden. Where the right of private
defence is pleaded, the defence must be a reasonable and probable version
satisfying the Court that the harm caused by the accused was necessary for
either warding off the attack or for forestalling any further reasonable
apprehension, from the attacker. The accused need not prove the existence of
the right of private defence beyond reasonable doubt. It is enough for him to
show as in a civil case that the preponderance of probabilities is in favour of
his plea.”
29.From the close reading of the decision referred to Supra, the Court can
cull out the following aspects;
a)If the plea of self-defence is taken on the side of the accused, he has
to place necessary material on record either by himself adducing positive
evidence or by elucidating necessary facts from the witnesses examined on the
side of the prosecution.
b)When the right of private defence is pleaded, the defence must be
reasonable and probable version satisfying the Court that the harm caused by the
accused was necessary for either warding off the attack or for forestalling any
further reasonable apprehension from the attacker.
30.Section 103 and 105 of the Indian Penal Code are dealt with the right
of private defence of property.
31. Section 103 of the said Code reads as follows;
“When the right of private defence of property extends to causing death.-
The right of private defence of the property extends, under the restrictions
mentioned in Section 99, to the voluntary causing of death or of any other harm
to the wrong-doer, if the offence, the committing of which,or the attempting to
commit which, occasions the exercise of the right, be an offence of any of the
descriptions hereinafter enumerated, namely:- ……….”
32.Section 105 of the said Code reads as follows;
“Commencement and continuance of the right of private defence of
property.- The right of private defence of property commences when a reasonable
apprehension of danger to the property commences. …….”
33.At this juncture, it would be more useful to look into Section 99 of
the said Code also and the same reads as follows;
“Acts against which there is no right of private defence.- There is no
right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done, by
a public servant acting in good faith under colour of his office, through that
act may not be strictly justifiable by law.
There is no right of private defence against an act which does not
reasonably cause the apprehension of death or of grievous hurt, if done, or
attempted to be done, by the discretion of a public servant acting in good
faith under colour of his office, though that direction may not be strictly
justifiable by law.
There is no right of private defence in cases in which there is time to
have recourse to be protection of the public authorities.”
34.From the conjoint reading of the provisions of the said Sections, the
Court can easily discern that the right of private defence is not available
unless a particular act would cause reasonable apprehension of death or grievous
hurt.
35.At this juncture, it would also be apropos to look into the decision
reported in 2008 AIR SCW 8012 (Bhanwar Singh & Ors. Vs. State of M.P.) wherein
the Honourable Apex Court has held as follows;
“The right of private defence is defence right. It is neither a right of
aggression or of reprisal. There is no right of private defence where there is
no apprehension of danger. The right of private defence is available only to one
who is suddenly confronted with the necessity of averting an impending danger
not of self creation. Necessity must be present, real or apparent. The basic
principle underlying the doctrine of the right of private defence is that when
an individual or his property is faced with a danger and immediate aid from the
State machinery is not readily available, that individual is entitled to protect
himself and his property. That being so, the necessary corollary is that the
violence which the citizen defending himself or his property is entitled to use
must not be unduly disproportionate to the injury which is sought to be averted
or which is reasonably apprehended and should not exceed its legitimate purpose.
The means and the force a threatened person adopts at the spur of the moment to
ward off the danger and to save himself or his property cannot be weighed in
golden scales. It is neither possible nor prudent to lay down abstract
parameters which can be applied to determine as to whether the means and force
adopted by the threatened person was proper or not. Answer to such a question
depends upon host of factors like the prevailing circumstances at the spot, his
feelings at the relevant time; the confusion and the excitement depending on the
nature of assault on him etc. Nonetheless, the exercise of the right of private
defence can never be vindictive or malicious. It would be repugnant to the very
concept of private defence.”
36.From the dictum of the Honourable Apex Court, it is made clear that the
basic principle of doctrine of the right of private defence is that when an
individual or his property is faced with danger and immediate aid from the State
machinery is not readily available, then the concerned individual is entitled to
protect himself and his property.
37.Now, with these legal backdrops, the Court has to consider the fourth
ground urged on the side of the appellants/accused. The specific evidence of
PW1 is that he and others have proceeded to Chennalpatti village for taking soil
through the lorries bearing Registration Nos.TN-72-9732 & MDD.9732 and before
reaching the place where soil has to be taken, near the Rice Mill of the second
accused, all the accused have deterred him from proceeding further and PW1 has
questioned them as to why they deterred him and immediately the first and second
accused have directed the remaining accused to murder him. Therefore, the
conditions for exercising the alleged right of private defence to the property
of the second accused are not at all available in the present case. It is not
the evidence of PW1 that he and others have reached the place where soil has to
be taken and they attempted to take soil and at that time the occurrence has
taken place. To put it in short, PW1 and others have not at all reached the
place, where soil has to be taken and they simply proceeded to that place and
before reaching there, he and others have been restrained by all the accused and
subsequently as per the direction of the accused 1 & 2, the remaining accused
have attacked him by using deadly weapons. Therefore, it is quite clear that
the right of private defence taken on the side of the appellants/accused is not
legally entertainable and the same can also be eschewed.
38.The trial Court after analysing all the evidence available on record
has rightly found the accused 1 to 5 guilty under Sections 148 & 341 of the
Indian Penal Code, accused 1 & 2 guilty under Sections 307 read with 149 of the
Indian Penal Code and the accused 3 to 5 guilty under Section 307 of the Indian
Penal Code.
39.In view of the foregoing discussions, this Court has not found even a
flimsy ground to make interference with the conviction and sentence passed by
the trial Court.
40.Now the Court has to look into the sentences imposed against the
accused. As per the evidence of PW15, Doctor PW1 has sustained only four simple
injuries. Out of four injuries, three injuries have been caused by the accused
3 to 5. Considering the nature of the injuries sustained by PW1, lenient view
can be taken in awarding sentence against the accused and under the said
circumstances, the accused 1 & 2 can be sentenced to undergo six months rigorous
imprisonment under Sections 307 read with 149 of the Indian Penal Code and the
accused 3 to 5 can be sentenced to undergo one year rigorous imprisonment under
Section 307 of the Indian Penal Code and the same would be sufficient to meet
the ends of justice. With the above modification, the present criminal appeal
can be allowed in part.
41.In fine, this criminal appeal is allowed in part. The conviction and
sentence passed against the accused 1 to 5 under Sections 148 & 341 of the
Indian Penal Code are confirmed. The conviction passed by the trial Court
against the accused 1 & 2 under Sections 307 read with 149 of the Indian Penal
Code and against the accused 3 to 5 under Section 307 of the Indian Penal Code
is also confirmed. But the sentences imposed against them are modified as
follows;
The accused 1 & 2 are sentenced to undergo six months rigorous
imprisonment under Sections 307 read with 149 of the Indian Penal Code and
likewise, the accused 3 to 5 are sentenced to undergo one year rigorous
imprisonment under Section 307 of the Indian Penal Code. In other aspect the
judgment of the trial Court is confirmed.
42.If the appellants/accused are not in duress, the trial court is
directed to take proper steps to incarcerate them in prison to serve out the
remainder of sentence.
gcg
To:
1.The Additional Sessions Judge,
FTC No.I, Tuticorin.
2.The Addl. Public Prosecutor,
Madurai Bench of Madras High
Court, Madurai.
3.The Inspector of Police,
Murappanadu Police Station,
Tuticorin.
4.V.R. Section,
Madurai Bench of Madras High
Court, Madurai.