{"id":257487,"date":"2003-12-24T00:00:00","date_gmt":"2003-12-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ravikumar-vs-the-state-by-the-inspector-of-on-24-december-2003"},"modified":"2016-03-08T07:02:34","modified_gmt":"2016-03-08T01:32:34","slug":"ravikumar-vs-the-state-by-the-inspector-of-on-24-december-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ravikumar-vs-the-state-by-the-inspector-of-on-24-december-2003","title":{"rendered":"Ravikumar vs The State By The Inspector Of … on 24 December, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Ravikumar vs The State By The Inspector Of … on 24 December, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 24\/12\/2003\n\nCORAM\n\nTHE HON'BLE MR. JUSTICE P. SATHASIVAM\nAND\nTHE HON'BLE MR. JUSTICE M. THANIKACHALAM\n\nC.A.NO.5 OF 1996\n\n1.     Ravikumar\n2.      Meganathan\n3.      Subramani\n4.      Ranganathan                                             ..Appellants.\n\n-Vs-\n\nThe State by the Inspector of Police,\nMarakanam Police Station\n(Cr.No.749\/93)                                                  ..Respondent.\n\n        Appeal filed under Section 374<\/a> Cr.P.C.  against the judgment dated  18\n.12.1995 in S.C.No.83\/95 on the file of the Court of Principal Sessions Judge,\nVillupuram Ramasamy Padayachiar District.\n\n!For Appellants :       Mr.     K.N.  Basha\n                        for Mrs.Vedavalli Kumar\n\n^For Respondent :       Mr.  S.  Sivakumar\n                        for Public Prosecutor\n\n:J U D G M E N T\n<\/pre>\n
(Judgment of the Court was delivered by M.  THANIKACHALAM,J.)<\/p>\n
        The  accused  1,  2,  3  & 5, who have been convicted by the Principal
\nSessions Judge, Villupuram, in S.C.No.83\/95, are the appellants.\n<\/p>\n
        2.      The complainant\/respondent, had filed a final  report  against
\nthe appellants and three others, seeking appropriate punishment under Sections
\n147<\/a>,  148<\/a>,  323<\/a>, 307<\/a>, 302<\/a> r\/w 109, 302 r\/w 149 and 307 r\/w 149, alleging, that
\nall  the  accused  have  formed  themselves  into  an  unlawful  assembly,  on
\n22.12.1993 at about 8.00 a.m.  at Kollumedu Village, with the common intention
\nof  committing  crime,  and  in  furtherance  of  the  said  common intention,
\ncommitting  rioting,  they  have  assaulted  some  of  the  witnesses,  caused
\ninjuries,  in addition to causing the death of one Vadivelu and therefore, all
\nthe  accused  should  be  dealt  with  accordingly,  under  appropriate  penal
\nprovisions.\n<\/p>\n
        3.      The   learned  Principal  Sessions  Judge,  Villupuram,  after
\nperusing the materials placed before him, satisfied that a  prima  facie  case
\nhas  been  made  out,  against all the accused, to proceed further and in this
\nview, framing necessary charges, as disclosed by the materials, questioned the
\naccused,  for  which  they  refused  to  plead  guilty,  denying  the   entire
\nprosecution case, contending that the complainant parties are the aggressors.\n<\/p>\n
        4.      The  complainant, in order to prove the charges framed against
\nthe accused, examined 17 witnesses, produced 39  documents,  and  14  material
\nobjects also.\n<\/p>\n
        5.      The  learned  Principal  Sessions  Judge, upon considering the
\nevidence  produced  for  assessment,  scanning  the  same,  based  upon  legal
\nposition,  came  to  the conclusion that no offence is made out against A4, A6
\nand A7 and in this view, he acquitted them, from all the charges.    But,  the
\nevidence revealed the offences committed by the appellants viz., A1, A2, under
\nSection 324<\/a> I.P.C., A3 and A5 under Section 302<\/a> I.P.C.  Though the prosecution
\ncontended,  that  all  the accused, in prosecution of the common object, being
\nthe members of an unlawful assembly, committed the crime,  the  learned  trial
\nJudge has  not  accepted the same.  Considering their individual overt act, as
\nproved, the learned trial Judge convicted the first accused under Section  324<\/a>
\nI.P.C.  and  second  accused under Section 324<\/a> I.P.C.  (two counts), directing
\nthem to pay a fine of Rs.750\/-, for each count and in default to  undergo  six
\nmonths R.I.   The learned trial Judge, finding guilty, A3 and A5 under Section
\n302<\/a> I.P.C., directed them to suffer life imprisonment.  The  above  conviction
\nand sentence are impugned in this appeal.\n<\/p>\n
        6.      Prosecution case in brief:-\n<\/p>\n
        (a)     Thiru  Vadivel,  (deceased)  is the father of Elango (P.W.1).,
\nRavi (P.W.3) and Anbazhagan (P.W.5).  Selvam (P.W.2) is the cousin brother  of
\nP.W.1.  Tmt.   Manjula (P.W.4) is the wife of P.W.5 and the daughter-in-law of
\nthe deceased.  P.W.6, Krishna Pillai is the brother  of  the  deceased.    The
\naccused  2  & 7 are the sons of the 6th accused and others are their pangalis.
\nAll are residing in a village called Kollumedu.\n<\/p>\n
        (b)     On 21.12.1993 one Siva, sister’s son of the first accused, was
\ngrazing the buffalos of the first accused, in the lands belonging  to  P.W.1’s
\nfamily.   On seeing this, P.W.5 assaulted him, which was reported to the first
\naccused.  The first accused questioning the conduct of  P.W.5  assaulted  him.
\nOn hearing this news, Vadivelu and Krishnapillai intervened and they were also
\nassaulted, thereby, straining the relationship.\n<\/p>\n
        (c)     On  22.12.1993  at about 8.00 a.m., P.Ws.1 and 2 were brushing
\ntheir teeth, near the common well of their village, Kollumedu.  At that  time,
\nthey have  noticed  the  passing  of  Ravikumar  (A1).    On seeing him, P.W.1
\nquestioned the first accused, is it fair on his part to assault P.W.5,  having
\ngrazed the buffalos in their land.  The first accused questioning this conduct
\nof P.W.1,  threatened  even  to  assault  him.   Thereafter, there was a wordy
\naltercation between A1 and P.W.1 in the presence of P.W.2.  The first  accused
\nbecame  furious, went inside the house of A6, which is very near to the common
\nwell and brought M.O.1 stick, beat P.W.1 on  his  back.    Aggrieved  by  this
\nconduct of  the  first  accused, P.W.1 and his brother P.W.2, chased him.  The
\nfirst accused took asylum, in the house of the 6th accused.\n<\/p>\n
        (d)     P.Ws.1 & 2 unable to retaliate and assault the  first  accused
\neffectively,  became  unrestrained  and were shouting in front of the house of
\nthe 6th accused.  The third accused Subramani hearing the threatening call  of
\nP.Ws.1  &  2,  yelled,  that  P.Ws.1 & 2 should be assaulted, even if a murder
\ntakes place, since they stepped into their house and shouted.   Encouraged  by
\nthe  support,  when P.W.1 was standing in front of the house of A6, the second
\naccused came there, with M.O.2, assaulted  P.W.1  over  his  head.    The  4th
\naccused assaulted  P.W.1,  by  a  reaper  M.O.3.   At the same time, the first
\naccused assaulted him, with an iron rod over the head.    The  second  accused
\nassaulted P.W.2 and caused injuries.  On seeing this incident, P.W.3 also went
\nthere to  their  rescue.  The second accused attacked Ravi with M.O.2, causing
\nstab injuries.  The father of P.Ws.1, 3 & 5 hearing this news, rushed  to  the
\nscene of  occurrence,  in  their  support.    On seeing Vadivel, accused 3 & 5
\nassaulted him over his head with yoke M.O.5 and M.O.6, while the  6th  accused
\ncaught hold of him, causing bleeding injuries of serious nature.  P.W.1 chased
\nthe accused,  taking a stick available from the scene of occurrence.  P.W.6 on
\nhearing the incident, that his brother was assaulted,  came  there,  seen  the
\ninjured  brother, then chased the accused and in that, the first accused, also
\nsustained injuries.  This incident was witnessed by Muthukrishnan,  Venupillai
\nand Nagappan.\n<\/p>\n
        (e)     P.W.1  and  others, after the accused left the place, took the
\ninjured Vadivel Pillai, to Dindivanam Hospital at about 11.30 a.m.  The doctor
\nP.W.8 who attended on him, declared that he was dead, at about 12.10 a.m.   on
\n22.12.1993<\/p>\n
        (f)     Dr.   Prabha  (P.W.8)  had  issued  Ex.P.10 accident register,
\nnoting the injuries sustained by Vadivel.  He  has  also  examined  P.W.1  and
\nnoted three  injuries,  for which he issued, Ex.P.11 certificate.  On the same
\nday at about 11.40 p.m., P.W.8 examined P.W.2 and issued  Ex.P.12  ,  for  the
\ninjuries sustained  by  him.    On  the same day at about 11.45 a.m., when the
\ndoctor examined P.W.3, he had noticed  some  injuries,  for  which  he  issued
\nEx.P.13.  P.W.1 after taking treatment, prepared Ex.P.1 complaint, went to the
\nMarakanam  Police  Station,  on  the  same  day  at about 8.30 p.m., which was
\nreceived by P.W.16.  On the basis of Ex.P.1,  P.W.16  registered  a  case,  in
\nCr.No.749\/93  under  Sections  147<\/a>,  148<\/a>,  341<\/a>,  324<\/a>,  326<\/a>, 302<\/a> I.P.C., and he
\nsubmitted the printed FIR Ex.  P.2, through P.W.11, which was received by  the
\nJudicial Magistrate Court,  Dindivanam, at about 8.00 a.m.  on 23.12.1993.  He
\nhas also informed the matter to the Inspector of Police, for investigation.\n<\/p>\n
        (g)     Thiru Muniappan, P.W.17 on information, on 23.12.1993, went to
\nDindivanam Hospital, where he received the copy of the FIR,  at  about  8  .15
\na.m.   Commencing  investigation,  P.W.17  conducted  inquest over the body of
\nVadivel, at the Hospital between 8.30 a.m.  and 10.30 a.m., in the presence of
\nPanchayatdars, and the result is Ex.P.36.  He had also examined  P.Ws.1-3  and
\nrecorded their  statements.    Through  P.W.12, giving requisition Ex.P.16, he
\nmade an arrangement for autopsy, to find out the cause of death  of  Vadivelu,
\nscientifically.  On the same, day by examining P.W.3, in the presence of P.W.7
\nand Ramalingam,  P.W.16  recovered blood stained shirt M.O.3 under Ex.P.3.  In
\ncontinuation of the investigation, he recovered from P.W.2, M.O.8 under Ex.P.5
\nand thereafter at about 3.00 p.m, he went to the scene of crime.\n<\/p>\n
        (h)     P.W.17 inspecting the scene of crime, prepared sketch  Ex.P.3,
\nas well  as  the observation mahazar Ex.P.6.  By examining one Venu Pillai, he
\nhad also recovered a portion of M.O.6 under Ex.P.7.  Further M.Os.5 &  6  were
\nrecovered by the investigating officer, on examination of P.W.6, under Ex.P.8.
\nThen examining P.W.6, the investigating officer recovered M.O.10 under Ex.P.9.\n<\/p>\n
        (i)     On 23.12.1993, when P.W.15 was in the Police Station, A6’s son
\npreferred Ex.P.34  complaint  at  about  11.30  a.m.    which  resulted in the
\nregistration of a case under Ex.P.35.\n<\/p>\n
        (j)     On his return to the police station, P.W.17  received  Ex.P.35
\nfrom P.W.15, at  about  8.30  p.m.  on 23.12.1993.  Taking this case also, for
\ninvestigation, inspected the  scene  of  crime,  examined  the  witnesses  and
\nrecorded their  statements.  On 28.12.1993, he arrested A1, A2, A4 & A7 in the
\npresence of  the  witnesses.    Accused  No.1,  2  &  4  gave  the  confession
\nstatements, Exs.P.22,  24,  26  respectively.   In pursuance of the confession
\nstatements, M.Os.  1 and 4 were  recovered,  at  the  instance  of  the  first
\naccused, under Ex.P.23.  On the basis of the confession statement given by the
\nsecond accused,  M.O.2,  was  recovered under Ex.P.25.  M.O.3 was recovered by
\nthe Investigating Officer, on the basis of the confession given by  A4,  under
\nEx.P.27.   The  investigating  officer,  having  noticed the injuries over the
\nperson of the accused, sent them for treatment and examination.\n<\/p>\n
        (k)     At the request of the investigating officer,  P.W.9  Dr.    S.
\nParasuraman,  on  identification of the body of Vadivelu, conducted autopsy at
\nabout 11.30  a.m.    which  disclosed  the  following  external  and  internal
\ninjuries:\n<\/p>\n
External injuries:\n<\/p>\n
1.      Lacerated wound 3 cm x 1\/2 cm bone deep left frontal region.\n<\/p>\n
2.      Lacerated  wound  2  cm  x 1\/4 cm bone deep left parietal region scalp
\nhair surrounding the lacerations are wet with blood.\n<\/p>\n
3.      Infected laceration 1 cm x 1\/4 cm x 1\/4 cm front of leftleg.\n<\/p>\n
4.      Contusion 4 cm x 3 cm right side of forehead.\n<\/p>\n
Internal Injuries:\n<\/p>\n
1.      Depressed fracture on the left side of skull about 10 x 5  cms  –  the
\ndepressed  bony  fragments  tearing the dura beneath and pressing on the brain
\ntissue and causing a laceration 3 cm x 2 cm of it.\n<\/p>\n
2.      Fracture about 20 cms long  extending  to  the  right  side  from  the
\ndepressed fragment.\n<\/p>\n
The doctor, analysing the effect of the injuries, came to the conclusion, that
\nthe  deceased  Vadivelu  died  due to shock and hemorrhage, in addition to the
\ninjury to brain, for which he issued Ex.P.17 postmortem certificate.\n<\/p>\n
        (l)     P.W.9 has also examined the  4th  accused  on  29.12.1993,  at
\nabout 12.40  p.m.   and issued Ex.P.18 certificate, for the injuries sustained
\nby him on 22.12.1993 at about 7.00 a.m.  On the same day at about 12 .45 p.m.,
\nhe examined the first accused, and issued Ex.P.19, Accident Register  for  the
\ninjuries sustained  by  him  on  22.12.1993  at 7.00 a.m.  On the same day, at
\nabout 4.30 p.m., P.W.9 examined the 5th accused and Ex.P.20  is  the  Accident
\nRegister  Copy  issued by him for the injuries sustained by him on 22.12.1993.
\nOn the same day, at about 4.3 5 p.m.,  the  doctor  examined  A6,  and  issued
\nEx.P.21, for the injuries sustained by him on 22.12.1993 at 7.00 a.m.<\/p>\n
        (m)     The  examination of the witnesses, statements recorded and the
\ncollected material objects, revealed the fact that the accused party were  the
\naggressors, whereas  the  complainant  party  was  the  victim.  In this view,
\ndropping the case given by the accused party, satisfying that a case  is  made
\nout  against  the  accused,  P.W.17  has  filed a final report, which ended in
\nconviction, after trial, against the appellants alone, which is sought  to  be
\nassailed, in this appeal.\n<\/p>\n
        7)      The  learned  trial Judge, considering the oral as well as the
\ndocumentary evidence, reached the conclusion that the delay in preferring  the
\ncomplaint  is  not  an  inordinate  one, whereas it had occurred in the normal
\ncourse, also well explained; that the accused parties, as the aggressors  have
\ncaused  injuries to the prosecution witnesses, as well as causing death of one
\nperson, that though there were more than five accused, they  have  not  formed
\nthemselves into an unlawful assembly, or not the members of unlawful assembly,
\nsharing  the  common intention of each and therefore, the charges against some
\nof the accused, either under Section 149<\/a> or 147 or 148 I.P.C<\/a>., as the case may
\nbe are not made out, that though some of the accused have been  charged  under
\nSection  307<\/a> I.P.C., there was no intention for the accused to aim the life of
\nthe injured witnesses, and if at all, the  assault,  causing  injuries,  would
\nmake  out a case only under Section 324<\/a> I.P.C., that the evidence available on
\nrecord, are sufficient only to sustain the conviction, against, the appellants
\n1 & 2 under Section 324<\/a> I.P.C., the appellants 3 & 4 under 302 I.P.C<\/a>.  In this
\nview, as aforementioned, conviction and sentence were slapped upon the accused
\nappellants, giving total relief to other accused.\n<\/p>\n
        8.      Heard the learned Counsel, Mr.  K.N.  Basha, appearing for the
\nappellants and the learned counsel  appearing  on  behalf  of  the  Additional
\nPublic  Prosecutor, who took the labour of taking us, through the oral as well
\nas documentary evidence in detail,  thereby  inspiring  us  to  pay  our  deep
\nconsideration.\n<\/p>\n
        9.      The learned counsel  for  the  appellants,  Mr.    K.N.  Basha
\nchallenged the lower Court’s verdict, on the following grounds namely, that:-\n<\/p>\n
        (i) the trial Court has failed to note the inordinate delay, which has
\nnot been explained, in giving complaint  as  well  as  the  first  information
\nreport   reaching   the  magistrate  Court,  which  should  ordinarily  create
\nreasonable doubt, and its benefit ought to have been given to the accused,<\/p>\n
        (ii) P.Ws.4 & 5 could not have witnessed the occurrence, but  ignoring
\nthe same, by accepting, error was committed by the trial Court,<\/p>\n
        (iii)  the  trial  Court  has  failed  to  note  that  the independent
\nwitnesses have not been examined,  though  available,  for  which  an  adverse
\ninference ought to have been drawn,<\/p>\n
        (iv)    the  evidence available on record, even as per the case of the
\nprosecution, would suggest that the complainant\/party alone was the aggressor,
\nwhich was not properly appreciated by the learned trial Judge,<\/p>\n
        (v)     that some of  the  accused  have  been  injured  in  the  same
\nincident,  but  the  prosecution has failed to explain the same, for which, an
\nadverse inference ought to have been drawn by  the  trial  Judge,  as  if  the
\ngenesis of the case is suppressed thereby, but unfortunately, it is ignored by
\nthe trial Court and<\/p>\n
        (vi)    the  accused,  if at all exercised their right of self defence
\ni.e.  the right of private  defence,  which  could  not  be  described  as  an
\noffence, being not punitive in nature.\n<\/p>\n
On the above  lines,  elaborating  the  same  with materials, Mr.  K.N.  Basha
\nurged us, that the conviction and  sentence  slapped  upon  the  accused,  are
\nliable to be set aside, at least giving the benefits of reasonable doubt.\n<\/p>\n
        10.     Per  contra,  the  Government Advocate would contend, that the
\neyewitnesses examined on behalf of the prosecution, are all injured witnesses,
\nin the incident, that there is no reason to discard their oral  testimony  and
\ntherefore,  the  trial Court has not committed any error in accepting the oral
\ntestimony of the prosecution witnesses, while convicting the accused.   It  is
\nthe  further  contention of the learned Government Advocate, that the injuries
\nsustained by some of the accused are trivial in nature and the non explanation
\nof the same, would not create doubt upon the case of the prosecution.  In  the
\nsame way, he would contend further, that the delay in preferring the complaint
\nwas  also well explained, which was correctly accepted by the trial Court, not
\nwarranting any interference.   On  the  above  lines,  elaborating  the  same,
\nopposing the other defence also, the Government Advocate would submit that the
\ntrial  Court  had  convicted  the  accused\/appellants  on  the  basis  of  the
\nunimpeachable evidence, which does not require any  interference,  whereas  it
\nrequires confirmation.\n<\/p>\n
        11.     The  main thrust of the learned counsel for the appellants is,
\nthat there is an inordinate and unexplained delay in giving the complaint,  as
\nwell  as  the  F.I.R  reaching  the  Magistrate Court, which should compel the
\ncourt, to entertain spontaneous, reasonable doubt.  On that basis, a strenuous
\nattempt was made to create doubt about the genesis of the case itself, thereby
\nmaking crack, allowing the accused to escape under the cloud  of  benefits  of
\ndoubts.  Though the argument was appealable prima facie, on deep consideration
\nof  the  materials available on record, we are unable to affirm the said view,
\nrather we are constrained to take a contra view, condoning  the  delay,  under
\nthe facts  and  circumstances  of  the case.  We are fully satisfied about the
\nexplanation offered by the prosecution witnesses, for the delay in  preferring
\nthe complaint,  as  well  as some delay in the F.I.R.  and complaint, reaching
\nthe concerned court.\n<\/p>\n
        12.     In Murugan vs.  State<\/a>  by  Inspector  of  Police,  Ottapidaram
\n(1993 L.W.    (Crl)  90,  a Division bench of this Court has held, that if the
\nprosecution failed to explain the inordinate delay,  the  delay  is  certainly
\nfatal in   the   circumstances  of  the  case.    Considering  the  facts  and
\ncircumstances of the case involved in the said decision, the Bench observed as
\nfollows:\n<\/p>\n
“From the various answers elicited in the evidence of witnesses and  also  the
\nmaterials  it  is  seen that the earliest version put forward in this case has
\nbeen suppressed and further the delay of nearly ten hours in lodging the first
\ninformation report is inordinate and unexplained, and this delay is  certainly
\nfatal in the circumstances of the case.”\n<\/p>\n
This  dictum  could be well applicable, if the delay is not explained or if it
\nis shown, that the prosecution had utilised the delay,  for  deliberation  and
\nwanton  inclusion  of  the  accused or the suppression of any previous report.
\nHere, this kind of circumstances does not exist at all.  In fact,  it  is  the
\nspecific  case  of  the  defence that they are the victims and the prosecution
\nparties are the aggressors and the injuries sustained by some of the  accused,
\nhave not  been  explained.    This  would  suggest,  that the incident and the
\npresence of the accused and the victims are admitted, at the same time of  the
\noccurrence.   Therefore,  the  question of impleading the accused wantonly, or
\nintroducing some imaginary story will not arise for consideration.\n<\/p>\n
        13.     The  trial  Court  sifting  the  evidence,   in   its   proper
\nperspective,  eliminated  certain  accused,  against whom no case is made out,
\nshowing the  duty  is  well  performed,  accepting  reliable  portion  of  the
\nprosecution witnesses, and rejecting the unreliable portion, in the process of
\nremoving the  chaff  from  the  grain.    The  trial  Court  has  come  to the
\nconclusion, that the truth and falsity are separable and therefore, separating
\nthe same,  rejecting  the  falsity  of  the  prosecution  case,  accepted  the
\ngenuineness portion  alone.    If  it  is  a case of the truth and falsity are
\ninseparable, the evidence could be totally discarded and this  situation  does
\nnot arise.   Therefore, as such, in our opinion, the above dictum may not have
\nany application, since we are satisfied that the delay is explained.  In  this
\ncontext, we have to see what is the delay caused, how it occurred, whether the
\nexplanation offered by the prosecution could be accepted.\n<\/p>\n
        14.     The incident had taken place at about 8.00 a.m.  on 22.12.1993
\nat Kollumedu Village, which is 4 km.  away from the police station.  Ex.  P.1,
\ncomplaint was  given  on  22.12.1993  at  about  8.30  p.m.  as seen from this
\ndocument, admittedly.  It is an  admitted  position,  the  complaint  and  the
\nF.I.R.   reached  the  Judicial  Magistrate Court, on 23.12.1993 at about 8.00
\na.m.  Therefore, it is crystal clear, that there  is  a  delay,  not  only  in
\npreferring the  complaint,  but  also in the F.I.R.  reaching to the Court, as
\nrightly submitted by the learned counsel for the appellants.  If it  is  shown
\nthat  the  delay  is  utilized, for the sneaking of a twisted case, then only,
\nsome doubt could arise, spontaneously, not otherwise.\n<\/p>\n
        15.     In the incident narrated in the final report, P.Ws.1, 2, and 3
\nare injured persons and one Vadivelu sustained serious bleeding head injuries,
\nnot collapsed at the spot.  It is also more or less an admitted  fact,  though
\nwe  find some difference regarding the time of the incident, that A1, A4, A5 &
\nA6 were also injured, in addition to the wife  of  A6  by  name  Nagammal  and
\nPadma, the  mother  of  A4.    Thus,  the situation might have been very tense
\nimmediately to the incident.  In the ordinary  circumstances,  could  be  said
\nnatural also, when the sons had seen their father was struggling for life, due
\nto  the assault, which caused bleeding injuries, the normal course of any son,
\nwould be to take the father immediately to the hospital  and  save  his  life.
\nThis  natural impulsion was adopted by P.W.1, being the son and he had no time
\neven to think little, that for the offences, immediately a complaint should be
\npreferred, failing which it will have some legal consequences, as now  raised.
\nTherefore,  the  inaction  on  the  part  of  P.W.1  or  his relatives, in not
\npreferring the complaint immediately to the police station, though it is 4  km
\naway from the scene of crime, is not strange or wanton, and on this ground, we
\nare unable to say, that there was deliberation or concoction, while preferring
\nthe complaint, at later point of time.\n<\/p>\n
        16.     After  the incident, as spoken by P.W.1, Vadivelu was admitted
\nin a hospital at Dindivanam, which is 35 to 40 km away from Marakkanam,  where
\nhe was declared  dead  at  about  12.10 p.m.  Only thereafter, P.  w.1 and his
\nrelatives would have thought of preferring the complaint to the police,  since
\nP.W.1’s  father  was  the  victim,  due  to the aggressive act of the accused.
\nP.W.1 had stated, that he was informed by the doctor, that the information was
\ngiven to the police and the police would come and enquire the matter.  In  any
\nmedico  legal  case,  it  is  the duty of the doctor to inform the same to the
\nnearest police station and accordingly, it appears, the doctor  also  informed
\nthe  police,  informing  the  same  to  P.W.1  also  and therefore, he has not
\ninitiated any immediate action, to prefer the complaint and  we  find  nothing
\nstrange.  As informed by the doctor, police have not come to the hospital, and
\nthen only  P.W.1  thought  of  preferring  complaint, by himself.  P.W.1 would
\nstate, at 4.00 or 5.00 p.m., when his brother Balu @ Balan came,  he  prepared<\/p>\n
Ex.P.1,  on his instruction and the same was handed over to the police, on the
\nsame day at about 8.30 p.m., as seen from the endorsement  in  Ex.P.1,  though
\nP.W.1 would state that he preferred the complaint at about 6.30 or 7.00 p.m.<\/p>\n
        17.     Thiru  Venugopal  (P.W.14),  the then Sub Inspector of Police,
\nMarakkanam Police Station, would state, that he had received  the  information
\nfrom  Marakkanam Police Station that Vadivelu died in the hospital, due to the
\ninjury sustained by him and three other injured persons are in  the  hospital,
\ntaking treatment.   He had further stated that he went to the hospital, but to
\nhis dismay, the injured were  not  there.    After  returning  to  the  police
\nstation,  he  came  to  know,  that the case was registered on the same day at
\nabout 8.30 p.m.  The information given to P.W.1, by the doctor that the matter
\nwas informed to the police station, is corroborated by the  oral  evidence  of
\nP.W.14, not  challenged acceptably.  Therefore, the delay, which caused at the
\ninitial stage viz., after the death of Vadivelu up  to  8.30  p.m.    is  well
\nexplained,  by  the  inspiring oral evidence of P.W.1 and P.W.14, supported by
\nthe attending circumstances.\n<\/p>\n
        18.     Thiru Uthirapathy (P.W.16), the then Sub Inspector of  Police,
\nLaw  and Order, Marakannam Police Station, has stated that at about 8.30 p.m.,
\nP.W.1 came to the police station, presented Ex.P.1 complaint, on which  basis,
\nhe  registered a case in Cr.No.749\/93 under Section 14<\/a> 7<\/a>, 148<\/a>, 326<\/a>, 302<\/a> I.P.C.
\nfor which, the printed  F.I.R.    Ex.P.2  was  prepared,  sent  to  the  Court
\nconcerned, through  P.W.11.    As  said  supra,  Ex.P.2  reaching the Judicial
\nMagistrate only on the next day at about 8 .00 a.m.    Therefore,  as  rightly
\nsubmitted  by  the  learned  counsel  for the appellants, there was a delay in
\nsending the printed F.I.R.  to the court concerned also.\n<\/p>\n
        19.     The distance between Marakanam and Dindivanam is 35 to  40  km
\nor so.    P.W.1,  after treatment was waiting under the hope, the police would
\ncome and  enquire,  as  informed  by  the  doctor,  which  had  not  happened.
\nTherefore,  he  travelled  all  the  way  from  Dindivanam  to Marakkanam, and
\npreferred a complaint.  Though there are transport facilities,  we  could  not
\nexpect,  that transport would have been available forthwith, without delay and
\nit all depends upon the time schedule of the buses.  In this view, as per  the
\navailability of the bus, P.W.1 would have reached the police station, at about
\n8.30 p.m.    or  so,  though  he has stated that he preferred the complaint at
\nabout 6.30 or 7.00 p.m.  and  in  this  view,  the  delay  in  preferring  the
\ncomplaint, is  well  explained.    P.W.11  would  state,  that he received the
\nprinted F.I.R.  in this case, on 22.12.1993 at about 21.30  hours  and  handed
\nover  the  same to the Judicial Magistrate No.II, Dindivanam on 23.12.1993, at
\nabout 8.00 a.m.  The suggestion thrown to him only  that  the  printed  F.I.R.
\nwas  given  to  him in the morning of 22.12.1993, is unacceptable to us and we
\nfind no reason to discard the oral testimony of P.W.11 and P.W.1  6,  in  this
\nregard.   Because  of the night time, the transport facility would be less and
\ntherefore, in the ordinary course,  consuming  the  time  for  travelling  and
\nattending  some other work also, probably P.W.11 would have reached the court,
\nconcerned only on 23.12.1993 at about 8.00 a.m.  and handed  over  the  F.I.R.
\nThus, the delay in reaching the printed F.I.R., to the Court on 23.12.1993, is
\nalso  well  explained to our satisfaction and we do not find any laches on the
\npart of the police and P.W.11, so as to think, that they consumed the time, to
\nimplicate the accused wantonly, or to suppress the real facts, in consultation
\nwith somebody.  Ex.P.1 does contain the details regarding the  incident,  said
\nto  have  taken  place,  who  are  the  victims,  what  are the causes for the
\nincident, etc.  mentioning the names of  the  eyewitnesses  also.    Only,  in
\naccordance  with  the  materials available in Ex.P1, all the eyewitnesses have
\nspoken, though they are interested, being  injured  and  the  victims  of  the
\nincident.\n<\/p>\n
        20.     In Harijana  Thirupala  v.    Public Prosecutor, High<\/a> Court of
\nA.P.  (2002 Crl.  L.J.  3751), the Apex Court has taken a view,  that  even  a
\ndelay of four hours is fatal to the prosecution and the learned counsel sought
\nthe aid,  from  this  decision also.  As seen from this decision, the distance
\nbetween the place of occurrence and the police station could be covered  by  <
\nor  1 hour depending upon the conveyance and including by walk, but the report
\nwas given at about 10.30 p.m., though the incident had taken  place  at  about
\n6.00 p.m.   or  6.30  p.m.   The evidence in that case, further disclosed that
\nsome of the eyewitnesses were  not  present,  at  the  time  of  the  inquest.
\nConsidering  the  facts  and  circumstances of the case and taking the overall
\nview based on the totality of the evidence and cumulative effect of the  same,
\nthat  delay  was  considered  so  fatal,  but  it  is  not the case before us.
\nTherefore, the submission of the learned counsel for the appellants, that  the
\ndelay in  F.I.R.    assumes  much  importance,  coupled  with  the fact of non
\nexplanation of the injuries on the accused, is not acceptable to  us.    Thus,
\nignoring  the  delay, we have to assess the oral evidence, in order to fix the
\nculpability.\n<\/p>\n
        21.     In the incident, Vadivelu sustained serious injuries and died,
\nindisputable.  P.W.8, who had examined Vadivelu at  the  first  instance,  had
\nnoticed 4  injuries, as indicated in Ex.P.10.  After the death of Vadivelu, at
\nthe request of the investigating officer (P.W.17), P.W.9 conducted autopsy and
\nhe had noticed four external injuries, out of which, three injuries were  over
\nthe head.    He  had  opined,  that Vadivelu died due to shock and hemorrhage,
\nwhich caused by the brain injury.  The internal injuries exposed,  during  the
\ndissection  of  Vadivelu’s  body,  also  revealed  the  fact that the internal
\ninjuries are corresponding to the external injuries.  Thus,  we  could  safely
\nconclude,  Vadivelu  died  only due to the head injuries, sustained by him, in
\nthe incident, which took place on 22.12.1993 at about 8.00 a.m.    The  reason
\nassigned  by  the doctor, for the cause of death of Vadivelu, was not shadowed
\neven by suggestion.    Therefore,  fixing  that  Vadivelu  died  due  to  head
\ninjuries, we have to see, who caused the said injuries.  It is the case of the
\nprosecution  that  A3  and  A5  were responsible for the injuries sustained by
\nVadivelu over his head, which was accepted by the trial Court.  If  there  are
\nmaterials to  accept the above fact, it is hard for A3 & A5 to escape.  Before
\ngoing into this aspect, who caused the head injuries, next we have to see, how
\nthe other prosecution witnesses were injured, and some  of  the  accused  have
\nsustained  injuries, whether those injuries were explained, if not what is the
\neffect.\n<\/p>\n
        22.     P.W.1, during the cross examination would admit, that when  he
\nwent  to the police station, to prefer the complaint, the injured accused were
\nalso present  there.    Contrary  to  the  evidence  given   by   P.W.1,   the
\nInvestigating  Officer  would state, that he had arrested the accused at later
\npoint of time.  This inconsistency, could be ignored, if unassailable evidence
\nare available, regarding the aggressive act of the accused.   It  appears  the
\ntruth is  otherwise.  As seen from Ex.P.34, the complaint given by Kannan S\/o.
\nArjunan-6th accused, all the accused escaped from the scene of crime, and  his
\neffort to  trace them, ended in vain.  As spoken by P.W.1, if the accused were
\nin the police station, Ex.P.34 would not have come into existence,  containing
\nthose averments.    In this view also, if there are materials to show that the
\nprosecution witnesses are the  aggressors,  then  only  failure  to  send  the
\naccused  forthwith  for  medical  examination  and  the non explanation of the
\ninjuries, should take predominant role.  P.W.9 had examined A1, A4, A5 & A6 on
\n29.12.1993, after 12.40 p.m.  and  issued  Exs.P.19,  P.1  8,  P.20  and  P.21
\nrespectively.  P.W.8  had  examined Nagammal W\/o.  A6 and Padma, the mother of
\nA4 on 5.1.1994 and issued Exs.P.14 & P.15.  As seen from the above said  wound
\ncertificates,  the  injuries sustained by A1, A4, A5 A6 were simple in nature.
\nMost of the injuries were abrasions, except 1 or 2 lacerations.    Because  of
\nthe  delayed examination, the doctor has noticed four heeling injuries, but at
\nthe same time, he has not noticed any grievous hurt.\n<\/p>\n
        23.     As spoken by P.Ws.8 and 9, it seems A1, A4, A5,  A6,  Nagammal
\nand Padma have reported to the doctor that they have sustained the injuries on
\n22.12.1993 at about  7.00 a.m.  at Kollumedu Village.  The incident, for which
\nthe accused are prosecuted, took place on 22.12.1993 at about 8.00  a.m.    in
\nthe same  village.    Thus,  we  find  there  is  a  difference  of  one hour.
\nTherefore, ordinarily it could not be said, that the accused and their parties
\nhave sustained injuries, at the same time, as  sustained  by  the  complainant
\nparties.  If the accused and the victims have sustained injuries, at different
\npoint of time, probably in separate incidents, generally, no duty is cast upon
\nthe prosecution,  to  explain the injuries, sustained by the accused.  In this
\nview, the non explanation of the injuries sustained by the accused, admittedly
\nto certain extent, would not cause any abrasion, in our view, to make  a  dent
\nupon  the  prosecution  case,  or  to  erupt a dark cloud, creating reasonable
\ndoubt.  Ignoring, for the purpose of the case, the time factor,  and  assuming
\nthat the accused also could have sustained injuries, at the same time, next we
\nhave  to  see,  whether  the  non  explanation takes predominant role, thereby
\ndoubting about the genesis of the prosecution case.\n<\/p>\n
        24.     In Lakshmi Singh and others v.  State of  Bihar<\/a>  AIR  1976  SC
\n2263, the Apex Court has ruled:\n<\/p>\n
“In  a  murder  case,  the  non  explanation  of the injuries sustained by the
\naccused at about the time of the occurrence or in the course of altercation is
\na very important circumstance from which the  Court  can  draw  the  following
\ninferences:\n<\/p>\n
        (1)     that the prosecution has suppressed the genesis and the origin
\nof the occurrence and has thus not presented the true version;\n<\/p>\n
        (2)     that  the  witnesses  who  have  denied  the  presence  of the
\ninjuries on the person of the accused are lying on a most material  point  and
\ntherefore their evidence is unreliable.\n<\/p>\n
        (3)     that  in  case  there  is a defence version which explains the
\ninjuries on the person of the accused it is rendered probable so as  to  throw
\ndoubt on the prosecution case.\n<\/p>\n
The  omission  on  the  part of the prosecution to explain the injuries on the
\nperson of the accused assumes  much  greater  importance  where  the  evidence
\nconsists  of  interested  or  inimical  witnesses or where the defence gives a
\nversion which competes in probability with that of the prosecution one.”\n<\/p>\n
It is also the observation of the Apex Court, based upon the previous rulings,
\nthat the prosecution is not duty bound to explain the  injuries  sustained  by
\nthe accused, which are minor and superficial or where the evidence is so clear
\nand  cogent,  so  independent  and  disinterested, so probable, consistent and
\ncredit worthy that it far outweighs the effect of the omission on the part  of
\nthe prosecution to explain the injuries.  Thus it is seen, it is not mandatory
\nin all the cases, where the accused sustained injuries, the prosecution should
\ncome  forward,  with  an  explanation  and  it  all depends upon the facts and
\ncircumstances of the case.\n<\/p>\n
        25.     In Raghunath v.  State of Haryana<\/a> [2003 (1) Crimes 260  (SC)],
\nthe  Apex  Court  has  held,  that  the non explanation of injuries on accused
\nperson, which are of serious nature would lead to  the  conclusion,  that  the
\nprosecution has  failed to establish its case, suppressing the real facts.  In
\nthe above said ruling, it is made out, that the  complainant  party  was  also
\narmed with  weapons  and had sufficient time to inflict the injuries.  In this
\nview, if it is made out, that the complainant  party  was  armed  with  deadly
\nweapons,  and  caused  injuries of serious nature to the accused, that too, to
\nvital parts, then only ordinarily, the non explanation of injuries, on persons
\nof the accused, would be fatal to the prosecution, leading to  the  inference,
\nthat the genesis of the case is suppressed.\n<\/p>\n
        26.     In State  of  Madhya  Pradesh  v.  Mishrilal<\/a> (dead) and others
\n(2003 SCC Crl 1829), the Apex Court  analysing  the  previous  case  laws  has
\nruled,  that  “the  omission  on  the  part of the prosecution, to explain the
\ninjuries on the person of the accused, assumes much greater importance,  where
\nthe evidence consists of interested or inimical witnesses or where the defence
\ngives  a  version which competes in probability with that of the prosecution.”
\nHere also all the witnesses are interested witnesses and for  the  reasons  we
\nare  going  to assign, it could not be said, that the defence version competes
\nin probability with that of the prosecution and therefore, as  such,  only  on
\nthe  basis  that  interested witnesses have been examined, and the injuries on
\nthe persons of the accused, have not  been  explained,  an  adverse  inference
\ncould  not  be  drawn,  as  if  the  prosecution party is the aggressor or the
\naccused party is the victim.\n<\/p>\n
        27.     In Sucha Singh v.  State of Punjab<\/a> (2003 SCC (Cri)  1697,  the
\nApex Court has ruled:\n<\/p>\n
“Non   explanation  of  injuries  by  the  prosecution  will  not  affect  the
\nprosecution case where  injuries  sustained  by  the  accused  are  minor  and
\nsuperficial  or  where the evidence is so clear and cogent, so independent and
\ndisinterested, so probable, consistent and creditworthy, that it outweighs the
\neffect of the  omission  on  the  part  of  the  prosecution  to  explain  the
\ninjuries.”\n<\/p>\n
It  is  the  further  dictum  of  the Apex Court, if the witnesses examined on
\nbehalf of the prosecution are believed, by the court, in proof of guilt of the
\naccused beyond reasonable doubt, question of  obligation  of  prosecution,  to
\nexplain the  injuries  sustained  by  the accused, will not arise.  Having the
\nabove principles in mind, we have to  see  the  nature  of  injuries  and  the
\nincidents.\n<\/p>\n
        28.     As  per the doctor’s opinion, which is not challenged, all the
\ninjuries sustained by the accused are simple in nature, including the injuries
\nsaid to have been sustained by one of the relatives  of  the  accused,  except
\nPadma, who  have  not been examined.  There is no clinching evidence, that the
\nprosecution witnesses were armed with deadly weapons and attacked the accused,
\nigniting the dispute.  Further, though the witnesses are some what interested,
\nconsidering their presence and the acceptability of their evidence, we are  of
\nthe  considered opinion, that the non explanation of the injuries sustained by
\nthe accused, would not make any abrasion over the prosecution.\n<\/p>\n
        29.     It is not the case of total non explanation of  the  injuries,
\nwhereas we  find  some  explanation as and when asked for.  P.W.1 would admit,
\nthat Krishnapillai chased the accused, after the accused assaulted his brother
\nviz., Vadivelu.  But he failed to say whether the accused  sustained  injuries
\nor not.  As seen from the oral evidence of P.W.3, he would assert, that no one
\nfrom the  side  of the accused sustained injuries.  But, P.W.4 alone had given
\nsome explanation, that  when  Krishnapillai  chased  the  accused,  the  first
\naccused sustained  injuries.    In  view  of  the  ordinary nature of injuries
\nsustained by the accused, the non explanation of the injuries  will  not  loom
\nlarge, in this case and therefore, we are inclined to reject this defence.\n<\/p>\n
        30.     The  learned  counsel  for  the  appellants would submit, that
\nP.Ws.4 and 5 could not be the eye witnesses  and  therefore,  accepting  their
\nevidence  or  seeking  buttress  from  their  oral  testimony,  to  prove  the
\nprosecution case, is unsafe.  From the cross examination of P.Ws.4 & 5, it  is
\nseen,  that  it is not the case of the d efence, that P.W.4 was not present at
\nthe time of the incident.  The very fact, that  she  had  exhibited  ignorance
\nregarding  the  injuries  sustained  by some of the accused and her statement,
\nrecorded by the police, not submitted to the Court forthwith, will not  remove
\nher, from  the  definition  of  the eyewitness.  As far as P.W.5 is concerned,
\nthough an attempt is made to exclude him from the purview of the eyewi  tness,
\nwe  could  say  that it is admitted even by the accused, that this witness was
\npresent at the time of the incident.  As seen from the cross  examination,  it
\nis  suggested  to him that he along with other prosecution witnesses, attacked
\nthe accused and in that process alone, some of the  witnesses  have  sustained
\ninjuries.   It  is  the  specific  case of the defence, as seen from the cross
\nexamination, that these witnesses, caused injuries to 4th  accused,  which  is
\ndenied.   Therefore,  it  could  be safely said, that the presence of P.W.5 is
\nwell admitted.  Under the  above  said  circumstances,  if  P.Ws.4  &  5  have
\nsupported  the  case  of  the  prosecution,  without  much  contradiction  and
\nomissions, there is nothing wrong in relying upon their oral testimony, also.\n<\/p>\n
        31.     In the complaint,  Jayarama  Pillai,  Venu  Pillai  and  Radha
\nPillai names  are  given,  as  if  they are the eyewitnesses.  But admittedly,
\nthose witnesses have not been examined before this Court, though two  of  them
\nhave been   examined  and  statements  were  recorded  by  the  police.    The
\nprosecution thought it fit, though the above said persons have  witnessed  the
\nincident, they may not support the case of the prosecution, and therefore, the
\nnon examination of the above said witnesses, though they are independent, will
\nnot create  any  doubt  in  the prosecution case.  The duty of the Court is to
\nfind out the trustworthiness of the witnesses, who have been examined and  for
\nthe  non  examination  of  the independent witnesses straight away, no adverse
\ninference could be drawn.  If the witnesses examined are  not  eye  witnesses,
\nthen the  matter  would be different.  Hence, in this view also, we are unable
\nto entertain any doubt, for the non examination of any independent witnesses.\n<\/p>\n
        32.     The another main contention of the  learned  counsel  for  the
\nappellants  is  that  the prosecution parties are the aggressors and if at all
\nthe accused would have exercised their right of private defence and therefore,
\nthe fact Vadivelu sustained injuries, died later on, could not be a ground  to
\nconvict the  accused A3 and A5 under Section 302<\/a> I.P.C.  since the same cannot
\nbe an offence under Section 96<\/a> of I.P.C.  The submission of the learned senior
\ncounsel though appears  to  be  a  rosy  picture,  considering  the  materials
\navailable  on  record,  it  appears  to  us  only  as  a  mirage should vanish
\nforthwith.  In this context, we have to see the cause for the  incident  viz.,
\nthe motive or the enmity, as the case may be.\n<\/p>\n
        33.     P.W.5 has  stated  that on 21.12.1993, at about 3.00 p.m.  one
\nShiva, elder sister’s son of the first accused, was grazing two  buffalos,  in
\nhis land and on seeing this, he beat him.  Thereafter, according to P.W.5, the
\nfirst accused  aggrieved  by  his  act,  slapped him on the cheek.  He further
\nsays, when the same was questioned by his father and Krishnapillai, they  were
\nalso assaulted.  The above evidence though denied generally, no explanation is
\noffered  by the accused, even at the time of the examination under Section 313<\/a>
\nCr.P.C.  P.W.6 also has stated about the incident taken place  on  21.12.1993,
\nbetween the  first  accused and P.W.5 and the intervention of his brother.  He
\nhas further stated, when he went and enquired about the highhanded activity of
\nthe first accused, the first accused assaulted him.  The above evidence  given
\nby P.W.6  is incontrovertible.  From the oral evidence of P.Ws.5 and 6, we are
\nfully satisfied that the accused persons alone were the cause at  the  initial
\nstage  for  the  subsequent incident on 22.12.1993, which is well explained by
\nP.Ws.1 & 2.\n<\/p>\n
        34.     P.W.1 has stated, that on 22.12.1993 at about 8.00 a.m.,  when
\nhe  was  brushing  his teeth along with P.W.2, near the common well, they have
\nnoticed the first accused coming there and on seeing him, they questioned  his
\nhighhanded  activity,  in assaulting his father and paternal junior uncle, who
\nhave questioned the activity of the first accused on the  previous  day.    He
\nfurther  says  that the first accused challenging went inside the house of 6th
\naccused where from, he got M.O.1 and assaulted him as well as P.W.2.   Because
\nof  this  conduct  of the first accused, P.Ws.1 & 2 have naturally, chased the
\nfirst accused, who took asylum in the house of the 6th accused.  This part  of
\nthe  evidence  given  by  P.Ws.1  &  2  is  not at all challenged, acceptably.
\nTherefore, at any stretch of imagination, the prosecution party could  not  be
\ndescribed as ‘aggressor’.\n<\/p>\n
        35.     Aggression means “unprovoked attacking or hostility shown by a
\nperson”.   As  per the Law Lexicon, Aggression means “the act of proceeding to
\nhostilities or invasion; a breach of peace or right of another or  others;  an
\nassault, in-road or encroachment; hence, any offensive action or procedure; as
\nan aggression  upon  a country, or upon vested rights or liberties”.  From the
\nabove definition, it could be said, if a person attacks first,  without  being
\nprovoked, then alone generally, he could be called as an aggressor.  The fact,
\nmany  persons  had sustained injuries on the side of the accused person alone,
\ncould not be the only reason, to label the other side as an aggressive  party.
\nHere,  in  the  presence  of  the  sons, father was attacked, causing bleeding
\ninjuries, which later took away his life also.  Under the said  circumstances,
\none  cannot  expect,  the sons should be the mute spectators and in the normal
\ncourse they would have acted violently also, to certain  extent  and  in  that
\nnatural  process alone, the accused party might have sustained injuries, which
\nis in our considered opinion, would not come within the meaning of  aggressive
\nact by  the  complainant  party.   In this context, we have to see what is the
\ndefence, where the incident had taken place,  whether  the  complainant  party
\nwere armed with deadly weapons, etc.<\/p>\n
        36.     The  incident took place just in front of A4’s house, which is
\nnear the common well, about 65 ft.  or so as indicated in Ex.P.37.  The  house
\nof Vadivelu  Pillai  is on the northern side of the common well.  According to
\nP.Ws.1 & 2, when they were standing  near  the  common  well,  brushing  their
\nteeth, the  initial  incident took place.  After the assault by A1, naturally,
\nP.Ws.1 & 2 as spoken by them, chased A1, who took asylum in A6’s house,  which
\nis adjacent  to A3 & A4s’ house in the same road.  The aggrieved or the victim
\nparty not only in the previous incident, but also on the date of the incident,
\nat the first instance, naturally chased the first accused, and  even  went  to
\nthe house  of  A6.  This act of the complainant party, in our considered view,
\ncould not be described as an aggressive act.  Therefore, the fact, P.  W.1 was
\nstanding before the house of the 6th accused and shouting at  them,  will  not
\nlead to  the  inference, that they are the aggressors.  As seen from the cross
\nexamination, it seems, it is the case of the defence, that P.W.1 and  his  men
\nwent  to  the  house  of  the  6th accused, knowing that the first accused was
\nthere, and attempted to attack them when the same was  prevented  by  Nagammal
\nand Padma, they have assaulted them also.  The relevant suggestion which would
\nindicate the defence “ehd; utp.    v’;f mg;gh.  md;gHfd;.  uhjhgps;is.  KUfd;.
\nbry;tk;.  unk&;.   fpU&;zgps;isa[k;  Mfpnahh;  ga’;fu  Ma[j’;fSld;  6tJ  vjphp
\ntPl;oy;  Kjy; vjphp ,Ug;gij bjhpe;Jf;bfhz;L mth;fs; tPl;ow;F brd;nwhk; vd;gJk;
\neh’;fs; 6tJ vjphpapd; tPl;oDs; cs;ns EiHe;J jhf;f Kad;wjhf mg;nghJ v’; fis 6tJ
\nvjphpapd; tPl;od; thrypy; 6tJ vjphp mtUila kidtp ehfk;khs;.   4  tJ  vjphpapd;
\nmk;kh gj;kh.   te;J  v’;fsplk;  mof;f  ntz;lhk; vd;W nfl;Lk;.  eh’;fs; mth;fis
\njhf;fpndhk; vd;why; rhpay;y\/ ,k;khjphp  eh’;fs;  te;  jjhf  brhy;tJk;.    me;j
\nFk;gYf;F  mt’;f mg;gh tonty; gps;isa[k; fpU&;zgps; isa[k; jiyik jh’;fp te;jjhf
\nbrhy;tJ rhpay;y@ As suggested above, if the complainant party had been to  the
\nhouse  of  A6, with an aggressive intention to assault the first accused, that
\ntoo with deadly weapons, the  first  accused  should  have  sustained  serious
\nnature of  injuries, in the hands of the so called “aggressive party”.  But as
\nseen from Ex.P.19,  he  had  sustained  only  laceration,  abrasion  of  small
\ndimension, complaining pain over the right wrist.  It seems, the first accused
\nhad  reported  to the doctor that he was assaulted by two persons, in front of
\nArjunapillai’s house, by  stick  and  stone,  which  could  not  be  generally
\ndescribed as deadly weapons.  Ex.P.34 complaint given by 6th accused son, also
\ndoes  not  disclose  any  deadly  weapon,  said  to  have  been carried by the
\ncomplainant party.  From the oral evidence of the prosecution witnesses, it is
\ncrystal clear that the first accused alone had assaulted P.Ws.1 &  2,  at  the
\nfirst  instance, which caused irritation, leading the subsequent incidents, in
\nthe course of natural way.\n<\/p>\n
        37.     On 21.12.1993, as spoken by P.Ws.5 & 6, the complainant  party
\nwas the suffering party.  On 22.12.1993, when P.W.1 had questioned the conduct
\nof  A1,  the first accused not only challenged him, but also assaulted him and
\nP.W.2.  The aggrieved persons viz.,  P.Ws.1  &  2,  chased  and  attempted  to
\nassault  the first accused and this act could not be described, at any stretch
\nof imagination, as an aggressive act.  Hearing the noise and on information or
\nso, the father of P.W.1 rushed to the  scene  of  crime.    During  the  cross
\nexamination,  it  is  not  even  specifically suggested, that the deceased was
\narmed with deadly weapon, so as to label him, as an aggressor, rushed  to  the
\nspot, to  cause riot, followed by assault.  From the acceptable oral evidence,
\nit is seen, an unarmed man was assaulted by the A3 and A5, with yokes, causing
\nbleeding injuries, and the said acts of the accused, would not certainly  come
\nwithin the definition of right of private defence, that too, to cause death of
\na person.\n<\/p>\n
        38.     In Deo  Narain  v.   State of Uttar Pradesh<\/a> (AIR 1973 SC 473),
\nthe Apex Court has held-\n<\/p>\n
“For exercising the right of private defence, it is  not  necessary  that  the
\nparty  exercising  it, must have actually received some injury at the hands of
\nthe aggressor.  It is a preventive and not punitive right.\n<\/p>\n
In order to exercise this kind of right, as  ruled  by  the  Apex  Court,  the
\naccused  party  should have entertained reasonable apprehension of danger, not
\non imaginary ground, but upon reality, such as seeing the crowd  or  the  arms
\ncarried by  the  other  parties, and their ferocious nature, etc.  Only on the
\nground, that the complainant party came  to  the  house  of  the  accused,  no
\npresumption  could be drawn, that it is reasonable on the part of the accused,
\nto apprehend danger to their life, thereby to exercise the self defence,  that
\ntoo, exceeding  the  limit.  As pointed out by us, no material has been placed
\nbefore the Court to say empathetically that the deceased was armed with deadly
\nweapons, such as knife, sphere or even stick.  It is also not the case of  the
\naccused that some of the accused sustained several fatal injuries to the vital
\norgans  of the body, thereby compelling them to entertain that the further act
\nof the complainant party would cause  danger  to  their  life  and  therefore,
\napprehending the  same,  they  have  retaliated.  No positive acceptable case,
\nthat the deceased also attacked and caused injuries, to any one.  On the basis
\nof an imaginary apprehension, if the  accused  party  have  exercised  the  so
\ncalled right  of  private  defence, Section 96<\/a> I.P.C.  would not come to their
\naid.\n<\/p>\n
        39.     Section 100<\/a> of I.P.C.  gives right to the parties, to exercise
\nthe right of private defence, even to cause death, under certain circumstances
\nviz., when (1) Such an assault may  reasonably  cause  the  apprehension  that
\ndeath  will  otherwise  be  the  consequence  of  such assault and (2) Such an
\nassault as may reasonably cause  the  apprehension  that  grievous  hurt  will
\notherwise be  the  consequence  of  such  an assault.  If at all, in our case,
\nthese two grounds would be available to the accused, but on facts they are not
\navailable to them.  It is the duty of the accused, to  prove  that  they  were
\ncompelled  to exercise the right of private defence and in that process alone,
\nVadivelu died.  For that, they should make out a case,  such  as,  the  weapon
\nused by the complainant party was deadly one, or the nature of assault and the
\nother  surrounding circumstances were of such nature that unless they have not
\nattacked, their life would have been at peril.    When  the  assault  has  not
\nassumed  a  dangerous  form, it cannot be said, that on account of the assault
\nmade by the deceased, the accused persons were  well  within  their  right  to
\ncause such  injuries,  which  were  likely  to cause the death of Vadivelu.  A
\nperson who claims right of private defence should show, that by the act of the
\ncomplainant party, he had no other option,  except  to  reach  the  conclusion
\nreasonably,  that  the  threat  is  immediate and real and he was compelled to
\nexercise this right.  In this case, the incident took place  just  before  the
\nhouse  of  A6, where the accused parties were more in number, the further fact
\nbeing, the complainant parties were not at all armed with any weapon.    Under
\nthe  above  facts and circumstances of the case, and in the light of the above
\ndiscussion, we are of the firm  and  considered  opinion,  that  no  right  of
\nprivate  defence  is  available  to the accused and the assault of the accused
\nespecially, A3 & A5, would not come within the meaning  of  right  of  private
\ndefence.  Taking shelter under Section 96<\/a> I.P.C., the accused could not escape
\nfrom their liability, if the offence is otherwise proved.\n<\/p>\n
        40.     According  to  the prosecution, the eyewitnesses are P.Ws.1 to\n<\/p>\n
5.  Admittedly, all of them are related to each other.  In fact, P.Ws.1,3  and
\n5 are the  sons  of  the  deceased  and P.W.4 is the wife of P.W.5.  i.e.  the
\ndaughter in law  of  the  decease  lu.    As  mentioned  supra,  some  of  the
\neyewitnesses,   who  have  been  mentioned  in  the  F.I.R,  examined  by  the
\ninvestigating officer, have not been examined  before  the  Court.    On  this
\nbasis,  the  learned  counsel  for  the  appellants would submit, that the non
\nexamination of the independent witnesses, is  fatal  to  the  prosecution  and
\nbelieving the oral testimony of the interested witnesses, would be unsafe.  We
\nhave already concluded, that the non examination of any independent witness is
\nnot fatal  to  the prosecution.  It is not the law, that the oral testimony of
\nthe interested witnesses, should not be believed at all and if at  all,  their
\ntestimony  require  much more scanning, and in this view, precaution should be
\ntaken, while  assessing.    Here,  though  the  witnesses  examined   on   the
\nprosecution  side  are interested in nature, presence of some of the witnesses
\nis admitted and others proved.  Under the said  circumstances,  believing  the
\noral  evidence of the prosecution witnesses, even ignoring the exaggeration if
\nany, should be reasonable and acceptable.  In this view, we will consider  the
\noral  evidence of the prosecution witnesses and find out what are the offences
\nmade out.\n<\/p>\n
        41.     P.W.1 being an injured person, had  picturised  the  incident,
\nwhich  took  place  on 22.12.1993 at about 8.00 a.m., informing the Court, the
\nprevious day’s incident also, which he had met.  It is the case of P.W.1, that
\nwhen he questioned the first accused, regarding his highhanded activity on the
\nprevious day, he went inside the house of A6, took  M.O.1  and  assaulted  not
\nonly him, but also P.W.2.  As mentioned supra, aggrieved by the conduct of the
\nfirst  accused,  according to P.W.1, when he and P.W.2 attempted to chase A 1,
\nhe went inside the house of A6 and thereafter,  the  subsequent  incident  had
\ntaken place.  He has stated, that at the instigation of A3, the second accused
\nattacked  him  with M.O.2 and the 4th accused attacked him with M.O.3, reaper.
\nHe further says that the second accused, Meganathan assaulted P.W.2 , by using
\nthe same weapon viz., M.O.2.  As  spoken  by  P.W.1,  the  doctors  have  also
\nnoticed the  injuries.  This evidence is corroborated by P.W.2, whose presence
\nis not very much challenged.    P.W.2  had  stated  that  the  second  accused
\nassaulted  P.W.1  with  M.O.2 and when he intervened, he was also assaulted by
\nA1, with M.O.4 causing injuries over his head.  It  is  the  further  case  of
\nP.W.2  that the second accused also assaulted him with M.O.2 causing injuries.
\nAnother eye witness P.W.3 would state very fairly, that on hearing the  noise,
\nwhen  he  went to the scene of crime, he had noticed the injuries sustained by
\nP.Ws.1 & 2 and thereafter, the second accused assaulted him with  M.O.2.    P.
\nW.3’s  evidence  makes clear, about the presence of the accused as well as the
\ninjuries sustained by P.Ws.1 & 2, thereby corroborating their oral  testimony.
\nThe  daughter  in  law  of  the  deceased  P.W.4, had also testified about the
\nincident, though she faile d to speak specifically the overt act committed  by
\nall the accused.  From the cross examination also, we are unable to find, much
\ncontradictions  or  omissions  so  as to say that the injured have given false
\nevidence, in  order  to  wreck  vengeance,  by  implicating  the  accused,  or
\nsomething like  that.    The  trial  Court  considering the evidence available
\nagainst A1 and A2, for the offences  committed  by  them,  under  Section  324<\/a>
\nI.P.C.,  had imposed a sentence of fine of Rs.750\/- each, for each count, with
\nusual default clause, taking a lenient view, probably  considering  the  fact,
\nthat some  of  the  accused  were also the victims of the incident.  We do not
\nfind any reason to deviate from the  said  findings  and  in  this  view,  the
\nconviction  and sentence slapped by the trial Court upon A1 & A2 under Section
\n324<\/a> I.P.C.  is to be confirmed.\n<\/p>\n
        42.     It is the specific case of the prosecution that A3 and A5  are
\ndirectly  responsible  for  the murder of Vadivelu and accordingly charge No.7
\nwas also framed against them.  P.W.1 had stated, that his father, hearing  the
\nincident,  came  to  the scene of occurrence and questioned the conduct of the
\naccused viz., why they are assaulting his sons.  According to P.W.1, when  the
\nfather  had  questioned  so,  the 5th accused assaulted him over his head with
\nM.O.5, whereas the third accused assaulted his father, over his head,  causing
\nbleeding injuries.   He  has  also identified those weapons as M.Os.5 & 6.  As
\nseen from the cross examination also, it is  not  the  specific  case  of  the
\naccused  that  the  deceased Vadivelu came there, armed with deadly weapon and
\nassaulted any one, causing some kind of  injuries,  thereby  creating  certain
\nkind  of  apprehension  in  the minds of the accused, to exercise the right of
\nprivate defence, which we have already negatived.  Thus the oral  evidence  of
\nP.W.1  is crystal clear, without any shadow of doubt, that an unarmed man, who
\nquestioned the conduct of the  accused,  in  assaulting  his  sons,  had  been
\nassaulted,  with  an  intention  to  commit murder, and that is why, they have
\naimed the head of the deceased, causing bleeding injuries.  It is also not the
\nsubmission of the learned counsel for  the  appellants,  that  due  to  sudden
\nprovocation  or  something  like  that,  A3  &  A5  attacked  the deceased and
\ntherefore, their act, if at all should come  under  Section  304<\/a>  I.P.C.    or
\nsomething like that.  It is the specific case of P.W.1, that the third accused
\ndeclared  “3 tJ vjphp Rg;ukzpak; tPnlwp te;jtid bfhiyna tpGe;jhYk; guthapy;iy\/
\nvtdhtJ xUtid tPH;j;jDk; vd;W brhd;dhs@;.  thereby indicating the intention  of
\nA3,  to  commit  murder  which  was  executed, when Vadivelu came to the spot,
\nshared by A5 also.  In this view, there is  a  clear  mensrea  to  commit  the
\nmurder and there is no possibility for A3 & A5, to escape from the clutches of
\n302 I.P.C<\/a>.    The evidence so given by P.W.1 regarding the overt act spoken by
\nhim, implicating A3 and A5, is not at all  challenged,  to  our  satisfaction,
\nthough  an  attempt  was  made, as if the complainant party was the aggressor.
\nFrom the cross examination also, it is seen  that  the  evidence  tendered  by
\nP.W.1  during  the  examination  in  chief,  was  confirmed and it is not even
\nspecifically suggested, that A3 and A5 have not assaulted the deceased,  using
\nM.Os.5  &  6, though an attempt was made to say, that M.Os.5 & 6 were not used
\nby the accused and they are the material objects, prepared for the case, which
\nappears to be unacceptable to us, in view of the  clear  investigation,  which
\nrevealed  the  recovery  of the weapons used, at the time of the commission of
\nthe offence.  The motive  is  also  once  again  affirmed,  during  the  cross
\nexamination and not denied.\n<\/p>\n
        43.     P.W.2,  Thiru Selvam @ Selvakumar had given evidence regarding
\nthe overt acts committed by A3 and A5.  Though the witnesses had spoken  about
\nthe alleged act of the 6th accused, in catching hold of the deceased, the same
\nwas  not  accepted  by the trial Court and in that sense, he was relieved from
\nthe clutches of 302 I.P.C<\/a>.  r\/w 149 I.P.C<\/a>.  The oral evidence of P.W.2, as far
\nas the overt act of A3 and A5 is concerned, confirms  the  evidence  given  by
\nP.W.1, which  is  further  strengthened  by P.W.3, another injured.  P.W.3 had
\nstated, that his father was assaulted by A3 & A5  by  M.Os.5  and  6,  causing
\nbleeding injuries,  which took away his life at about 12.10 p.m.  or so in the
\nhospital.  In fact, it is suggested to P.W.3,  when  t  he  complainant  party
\nattacked  the accused party, the father sustained injuries and this suggestion
\ngives support to the prosecution evidence, which  indicates  that  A3  and  A5
\nalone had  assaulted  the deceased.  The daughter in law of the deceased also,
\nhad testified before the trial Court, about the crime committed by A3 and  A5,
\nin assaulting  Vadivelu,  causing  bleeding  injuries.  As seen from the cross
\nexamination, it appears, the case of the defence is that under the  leadership
\nof  Vadivelu,  the  complainant  party  went  to  the  accused place picked up
\nquarrels and in that  pellmell,  and  wordy  altercation,  Vadivelu  sustained
\ninjuries.  This would also suggest positively that the deceased was the victim
\nof the  assault  by  A3 & A5.  When P.Ws.1 & 2 have spoken in detail about the
\nlate arrival  of  Vadivel,  on  hearing  the  incident,  it  is  not  erasably
\nquestioned.   Therefore,  we are constrained to hold that the deceased came to
\nthe spot, only on hearing the news, regarding the dispute between his sons and
\naccused party.  As father, when he had seen his  sons  injured,  naturally  he
\nought to have questioned the accused, which furiated A3 and A5, to assault so,
\nthat too declaring to commit murder.\n<\/p>\n
        44.     According to P.W.5, he was not actually present at the initial
\nstage of  the incident.  He would state, hearing the noise, his father and his
\nwife rushed to the scene of occurrence, and  seeing  the  same,  he  had  also
\nfollowed them.   He had stated that his father requested the party to stop the
\nincident and at that time, the 3rd and 5th accused assaulted him with M.Os.5 &
\n6 and in this way, he identified the weapons also.  I find no  reason,  though
\nhe is the initial cause, for the previous day’s incident, on that score, he is
\ninterested  or inimically disposed, to discard his oral testimony, which is in
\nconformity with all probabilities, supported by other witnesses.\n<\/p>\n
        45.     The brother of the deceased viz., Krishna Pillai  (P.W.6)  has
\nalso  stated  that  on 22.12.1993 when he was in his house, he heard the noise
\nand rushed to the spot, where he had seen P.Ws.1 to 3 with bleeding  injuries,
\nas well as his brother in the lap of P.W.4 with bleeding injuries on the head.
\nIt is  the  further  case  of P.W.6, he had also seen some of the accused.  He
\nwould state further, aggrieved by the conduct of the accused, he assaulted the
\nfirst accused, causing injuries and thereafter all the accused ran away,  even
\nthrowing the weapon used by them for assaulting the deceased.  Though P.W.6 is
\nnot  an  eyewitness, he confirms the subsequent act which lends support to the
\noral testimony of other witnesses.  The injuries sustained by the deceased  as
\nper  medical  report,  are  in  accordance  with  the  evidence  given  by the
\neyewitnesses and we find no contradictions or omissions in this regard.    The
\ndoctor  has  opined that injury No.1 certainly would have caused death, but it
\nis not the case.  The other injuries are harmless.   As  seen  from  Ex.P.197,
\nfirst  two  injuries  are  lacerated  in nature, more or less, having the same
\ndimension, though the second injury is less in size, causing bone deep  injury
\nto the  frontal  region  of  the head.  The witnesses were also unable to say,
\nwhich injury was caused by which accused viz., A3 and A5.    But,  it  is  the
\npositive and  definite  case  that  both  have  caused  head  injuries.  There
\nintention is also so clear that they have aimed the head of Vadivelu,  on  the
\nbasis of  the  declaration  made  by  A3.    In this view, both should be held
\nresponsible, since acted sharing the common intentions also.  Thus, satisfying
\nourselves to the entire extent about the act of A3 and A5,  we  conclude  that
\nbecause  of  the  injuries  inflicted  by  A3 & A5, using M.Os.5 & 6, Vadivelu
\nsuccumbed to the same, on the same day, for which,  as  rightly  held  by  the
\ntrial  Court,  A3  &  A5  should  be held responsible and in this view, we are
\nconstrained to confirm the findings rendered by the trial Court as far as A3 &
\nA5 are concerned under Section 302<\/a> I.P.C.\n<\/p>\n
        46.     Thiru Muniappan, P.W.17, the Investigating Officer has  spoken
\nabout  the investigation of the case, commencing from 23.12.1993 at about 8.00
\na.m..  According  to  him,  he  inspected  the  premises,  conducted  inquest,
\nrecovered  M.Os.5  &  6,  not  only from the scene of crime, but also from one
\nVenupillai, under Ex.P.17.  It is the specific case of the eyewitnesses,  that
\nwhen  A3  used  yoke,  t  o  attack the deceased, the same was broken into two
\npieces, which is confirmed by Ex.P.32 also.   The  Serologist’s  Report  would
\nindicate,  that  the  yoke  contained  human  ‘B’  Group  blood as that of the
\ndeceased, as seen from Ex.P.33, thereby probabalizing and  establishing,  that
\nA3 and  A5  had  used  the  yokes,  to assault Vadivelu.  In the investigation
\nconducted by P.W.17 also, we are unable to find any grey  area,  creating  any
\nspontaneous doubt, to cast cloud upon the prosecution case.  All the witnesses
\nhave deposed before the trial Court, even as per the statements given by them,
\nbefore  the  Investigating  Officer,  without  much  contradiction barring the
\nnatural commissions and omissions.\n<\/p>\n
        47.     The learned trial Judge considering all the  above  facts  and
\ncircumstances  of the case, weighing the evidence in its proper scale, came to
\nan irresistible conclusion that A3 and A5 are liable to be  dealt  with  under
\nSection 302<\/a>  I.P.C.  Concurring with the said findings, we conclude that there
\nis no merit in the appeal and the appeal is liable to be dismissed.\n<\/p>\n
        In the result, for the aforementioned reasons, the appeal fails.   The
\njudgment  of  conviction  and sentence in S.C.No.83\/95 dated 18.12.1995 on the
\nfile of the Court of Principal Sessions Judge, Villupuram Ramasamy Padayachiar
\nDistrict, is confirmed.  Accused 3 and 5 are directed to surrender before  the
\ntrial Court  since  on  bail,  within 15 days from today.  On their failure to
\nsurrender, the trial Court is directed to secure the accused  to  undergo  the
\nremaining period of sentence.\n<\/p>\n
kv<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Ravikumar vs The State By The Inspector Of … on 24 December, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24\/12\/2003 CORAM THE HON’BLE MR. JUSTICE P. SATHASIVAM AND THE HON’BLE MR. JUSTICE M. THANIKACHALAM C.A.NO.5 OF 1996 1. Ravikumar 2. Meganathan 3. Subramani 4. Ranganathan ..Appellants. -Vs- The State […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-257487","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nRavikumar vs The State By The Inspector Of ... on 24 December, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ravikumar-vs-the-state-by-the-inspector-of-on-24-december-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ravikumar vs The State By The Inspector Of ... on 24 December, 2003 - 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