Abdul Hameed and Another vs State

Padmini Jesudurai, J.—This appeal has been filed by A-1 and A-2 in S.C.154 of 1987, on the file of the Sessions Judge, Madurai,

challenging their conviction for an offence under S. 304 (Part II) of the Indian Penal Code and the sentence of imprisonment for a period of four

years and the conviction of the second appellant for an offence under S. 323 of the Indian Penal Code and imprisonment for a period of three

months.

The appellants along with their co-accused arrayed as A-3 were tried by the above court in the above case, for offence under Ss. 302 read with

34 and 323 of the Indian Penal Code, in that, on 1.2.1987 at 4.15 P.M. in furtherance of a common intention, they caused the death of one

Thangappan, by repeatedly stabbing him with a knife in the village Cumbum and in the course of the same transaction, the second appellant beat

P.W.1 and caused her a simple injury.

The facts of the prosecution case briefly are as follows: The deceased Thangappan, aged about 33 at the time of his death is the son of P.W.1.

The acquitted accused A-3 was his wife. The first appellant is the maternal uncle of A3 and the second appellant is the younger brother of A3. The

deceased had already married a woman and had children, and after divorcing her he was living with A3, at Madurai. They had three children and

in course of time quarrels arose between A3 and the deceased, over the deceased developing intimacy with another woman, He used to beat A3

and about one month prior to the occurrence, the mother of A3 had brought A3 to her house at Cumbum, along with the two daughters. The son

of A3 and the deceased was left in an orphanage. On the day prior to the occurrence, the deceased wanted A3 to accompany him to Madurai and

live with him. Since A3 was not willing a jamath was held at Cumbum, presided over by its president P.W.4. Taking into consideration the past

conduct of the deceased, who appeared at the jamath drunk and created trouble, the jamath decided that A3 need not go and live with the

deceased just then, but that the deceased should lead a proper life for a period of one month and thereafter, the jamath would gain meet and

reconsider the question of A3 resuming co-habitation with the deceased. The Jamath also directed the deceased to send Rs. 10/- daily to A3

towards her maintenance and that of the children.

On 1.2.1983 at about 4.15 P.M., P.W.1 who is the mother of the deceased, along with her grandson P.W.2 and the deceased, went to the

house of A3 to pay the ten rupees. It is stated that they did not find A3 there and on coming to know that A3 was in the house of her uncle A1,

they went to the house of A1. A3 was there and the deceased asked A3 to accompany him. The deceased refused to follow him and thereupon

the deceased dragged A3 by hand and forcibly dragged her along with north-south street and then along the east-west street. While he was so

dragging A3, A1 and A2 came there and A1 took out a knife M.O.1 and stabbed the deceased on the left flank, saying that a drunkard like him

was not in need of a wife. A2 got the knife from A1 and stabbed the deceased on the back, A3 got M.O.1 from A2 and repeatedly stabbed the

deceased on his flank. P.W.1 intervened and the second appellant beat her with hand and pushed her away, P.W.1 fell down and sustained an

injury on her forehead. The appellants and A3 ran away, dropping M.O.1 at the scene. The deceased was dead. P.W.3, the son-in-law of P.W.1

who had arrived a the scene, took P.W.1 to the police station at Cumbum wherein P.W.1 gave Ex.P.1 to P.W.10, the Sub Inspector of Police.

Ex.P1 was registered as Crime No. 73/87 for offences under Ss. 302 and 324 of the Indian Penal Code.

P.W.1 was sent for treatment to the Government hospital at Cumbum wherein P.W.8, the Civil Assistant Surgeon examined her and found on

her the following two injuries described by him in Ex.P.6, the Wound Certificate.

Two bite marks covered with dry blood over the back of right forearm.

A red contusion 5 x 4 cms. on the left side of forehead.

Both the injuries are sampled in nature and could have been caused at the time and in the manner alleged.

P.W.11, the Inspector of Police, took up investigation, held inquest, examined witnesses, visited the scene, prepared observation mahazar,

seized incriminating articles including M.O.1 and sent the body for postmortem.

P.W.6, the Civil Assistant Surgeon attached to the Government Hospital, Cumbum, conducted postmortem on the dead body of the deceased

on 2.2.1987, at 10.15 A.M. and found on the body the following injuries described by him Ex.P.5 postmortem certificate.

On the left side anterior axillary line corresponding to 4th inter costal space, a clear cut margin incised wound of 1"" x 1/2"" x size extending

obliquely downwards into the thoracic cavity (Chest Cavity) on the back side of body twenty injuries found.

On the back of trunk 1"" above the natal cleft 1 cm. x 1 cm. x 1 cm. size incised wound with clear cut margin.

5"" above the left buttock an incised wound of 2 cms. x 1 cm. x 7 cm.

8"" above the right buttock an incised wound of 3 x 2 x 7 cms.

1/2"" above the injury No. 4 an incised wound of 2 x 1 x 5 cms. size.

1/2"" above and medial to the injury No. 5 an incised wound of 2 x 2 x 5 cms. This injury extends into the spinal card cutting the vertebral

corresponding to T11 level.

6"" below the right scapular angle and incised wound of 11/2 cms. x 1 cm. x 6cms.

1"" above the above injury No. 7 an incised wound of 3 x 2 x 5 cms.

4"" below the right scapular angle an incised oblique wound of 1 1/2"" x 1cm. extending into the thoracic cavity obliquely upwards.

3"" below the right scapular angle 2 cms. x 2 cms. oblique incised wound extending into thoracic cavity.

1"" above and medial to the above (No. 10) injury an oblique incised wound of 2 cms. x 1 cm. x 7 cms.

1/2"" above the above injury No.11 an oblique incised wound of 3 x 2 x 2 cms.

1/2"" above the injury No. 12 an incised wound of 2 x 2 cms. extending into thoracic cavity.

1 cm. above the injury No. 13 an incised wound of 2 x 1 x 3cms.

1/2"" medial to the injury No. 14 an incised wound of 3 x 2 cms. penetrating into thoracic cavity.

1"" above and medial to injury No. 15 an incised wound of 2 x 1 x 4 cms. extending into vertebral Column corresponding to T.5 level.

1/2"" below and medial to the left scapular margin an incised wound of 21/2 cms. x 1 cm. and extending obliquely into left thoracic cavity

(Chest cavity).

1"" above and lateral to the injury No. 17 and incised wound of 2 x 1 cm. penetrating obliquely into left chest cavity.

2"" below the left scapular angle an incised wound 1 cm. x 1 cm. x 2 cms.

Corresponding to T.9 vertebral column an incised wound of 2 x 1 x 4 cms. extending into vertebral column.

Just below the above injury No. 20) an oblique incised wound of 1 x 1 x 4 cms. wound extending into vertebral column corresponding to T.10

vertebra.

Just above umbilicus 1/2"" x 1/4"" size four lacerated injuries are seen.

Internal examination 1/2 Lungs: 2 x 2 x 1 cm. size incised wound seen on left lobe of lung. This injury correspondings to injury No.1. On right lung,

lower outer aspect (Posterior) of lower lobe 5 incised wounds are seen. These wounds correspondings to injury Nos.9, 10, 13 and 15. On the left

lung lower and outer aspect (Posterior) two incised wounds corresponding to injury Nos. 17 and 18.

Right dome of a diaphragm is punctured (2x1 cms)

Liver: on outer aspect of (Posterior) right lobe of liver two incised wounds of 3 x 3 x 2 cms. seen.

Spinal cord: At 5.5, T.9 and T.10 Vertebra level spinal cord is partly cut.

Stomach: 300 ml. of partly semi solid rice particles seen. No other organs injured skull and brain normal.

The injuries could have been caused due to stab with M.O.1 knife. Death was due to shock and hemorrhage due to injuries to the lungs, liver,

diaphragm and spinal cord. Injury Nos. 1, 6, 9, 10, 13, 15 16 and 20 are necessarily fatal. The injuries could have been caused with a weapon

like M.O.1 at the time alleged.

P.W.11 sent the properties to the court and after completing investigation, laid charge sheet.

During trial. On behalf of the prosecution, P.Ws.1 to 11 were examined, Exs.P.1 to P.13 marked and M.Os.1 to 13 were produced. The

appellants and A-3, when questioned under S. 313 of the Code of Criminal Procedure, denied having committed any crime. The learned Sessions

Judge accepted the prosecution case in full, acquitted A3 in view of the evidence of P.W.1 that the deceased had died immediately after the

second appellant had stabbed the deceased and the injuries caused by A3 were only after the death of the deceased. A3 was therefore acquitted.

The learned Sessions Judge further held that the appellants had the right of private defence to protect A3 from any possible assault by the

deceased and there was apprehension in their minds that the deceased would cause bodily injury on A3 and that, therefore, they were entitled to

the right of private defence, but that they had exceeded the right and the offence would therefore fall under S 304 (Part II) of the Indian Penal

Code. He accordingly, convicted and sentenced the appellants as stated earlier, which has resulted in the present appeal being filed by the

aggrieved accused.

Thiru P. Subramani, the learned counsel for the appellants would initially contend that P.W.3 could never have been an eyewitness to the

occurrence in view of the evidence of P.W.1, the recital in Ex.P.1 and the evidence of P.W.3 himself in cross examination. Regarding the evidence

of P.Ws.1 and 2, the learned counsel pointed out that both these eyewitnesses speak about the appellants causing only one injury on the deceased

and in view of the evidence of P.W.6 the medical officer who conducted the postmortem that several injuries are necessarily fatal, the prosecution

had failed to correlate the injuries found on the body of the deceased with a single stab said to have been given by each of the appellants. The

learned counsel also pointed out discrepancies in the evidence of P.Ws.1 and 3 that the police arrived at the scene and then picked up P.W.1 to

the police station wherein she gave Ex.P.1 and the contra evidence of P.W.10, the absence of independent witnesses though there was evidence

that the initial quarrel in the house of the first appellant was noisy and prolonged, which had attracted the attention of several persons and in view of

the statement in Ex.P.1 that two others besides P.W.2 had also witnessed the occurrence. The learned counsel finally contended that there could

be no question of the appellants exceeding the right of private defence, considering the past conduct of the deceased, his behaviour at the Jamath

and the admitted case of the prosecution that he was forcibly dragging A3 along the streets and the evidence of P.Ws.1 and 2 that each of the

appellants had caused only one injury on the deceased. The learned counsel, therefore, submitted that the right of private defence could never be

said to have been exceeded.

Per contra, the learned Public Prosecutor, by referring to the salient features of the prosecution case sought to sustain the conviction .

The question that arises for consideration is whether the conviction of the appellants can be sustained.

It is true that the occurrence had taken place in broad day light and the deceased has sustained as many as 22 external injuries. Death has been

instantaneous. The occurrence has taken place in a public street. P.W.1 being the mother of the deceased could normally be expected to

accompany the son. However, in view of the fact that the prosecution has put forward only members of the family of the deceased as the only eye

witnesses to an occurrence that has taken place in a street, the evidence of P.Ws.1 to 3 will have to be scrutinised with great care. Taking P.W.3

first, it is seen that even P.W.1 would say that P.W.3 arrived at the scene only after the occurrence was over and took her to the police station.

P.W.3 though in the chief examination appears to be a full-fledged eyewitness, does not stick to it in the cross examination. He has stated that

before he reached the scene, the accused had run away and he could not state, as to which accused caused injuries on the deceased on which

parts and that he did not see the deceased coming on quarrelling with A3., Further, in Ex.P.1, we find P.W.3 as an attestor. P.W.1 in Ex.P.1 has

referred to P.W.2, one Anver Ali and one Shagul Hamid as witnesses to the occurrence. She has not mentioned that P.W.3 witnessed the

occurrence. If P.W.3 had really witnessed the occurrence, P.W.1 would not have failed to mention it in Ex.P.1, particularly when P.W.1 has

mentioned three persons as witnesses to the occurrence. It is, therefore, clear that P.W.3 could never have witnessed the occurrence. I reject the

evidence of P.W.3.

Regarding the evidence of P.Ws.1 and 2, we find that each of them attributes only one stab to each of the appellants. P.Ws.1 and 2 say that

the first appellant stabbed the deceased with M.O.1 on the left flank, while the second appellant stabbed him on the back. In Ex.P.5, the

Postmortem Certificate, we find that there are a number of stab injuries on the left flank and on the buttocks and also a number of stab injuries on

the back of the deceased. Some of these injuries are described by P.W.6 as being necessarily fatal. The prosecution, therefore, has not established

as to which injury was really caused by each of these appellants. Unless the prosecution correlates the act of the appellants with the resultant injury

the appellant cannot be held liable even for an offence under S.304 (Part II) of the Indian Penal Code.

14A. Considerable doubt is created regarding the circumstances under which Ex.P.1 has come into existence. While according to P.Ws.3 and 10.,

P.W.1 came to the police station and gave Ex.P.1, P.W.1 has stated that the police came to the scene and picked up P.W.1 and on going to the

police station she gave Ex.P.1.

The more important question would be whether the appellants 1 and 2 have exceeded the right of private defence. It is the admitted case of the

prosecution that the deceased was a drunkard. P.W.1 admits that there were prohibition cases against the deceased. P.W.2 admits that the

deceased had gone to jail. P.W.4 admits that at the jamath the deceased came drunk and created trouble and that even on the day of the

occurrence, P.W.4 met the deceased in the morning and even then the deceased was drunk. P.W.2 would add that frequently the deceased used

to beat A3, and A3 would go away in anger. When questions have been asked from P.W.1 as to whether there were other cases including theft

cases against the deceased. P.W.1 does not deny but would only say that she is not aware of any cases. Even on the day of the occurrence when

P.W.4 had met the deceased, the deceased had an injury on his right hand and when P.W.4 had questioned the deceased, the latter had stated

that in the north street he had been stabbed. The very fact that the elders in the jamath decided that A.3 should not be permitted to accompany the

deceased and that the deceased must lead a good life for atleast one month before the question of A3 again resuming cohabitation with the

deceased could be considered shows, that the villagers had felt that it would be unsafe for A3 to go and live with the deceased. It is in this

background that the occurrence has taken place.

Regarding what preceded the actual stabbing, it is the prosecution case that from the house of the first appellant, the deceased was dragging

the third accused along the street. The jamath had decided that A3 need not join the deceased then, and the deceased had to send Rs. 10/-

through a third party to A3. Violating the decision of the jamath, the deceased had gone to the house of A3 and from there to the house of the first

appellant. The reason given is that P.W.1 and the deceased went to pay the ten rupees to A3. If they had really gone to pay the ten rupees, there

was no necessity for the deceased to insist on A3 accompanying him. No money was found on the dead body of the deceased. Nor had P.W.1

produced any ten rupees to the police officer. The deceased and P.W.1 had gone to the house of A3 and from there to the house of the first

appellant, not with the object of paying any ten rupees, but with the object of bringing back A3 to their house, contrary to the decision of the

jamath. When A3 refused, it is the prosecution case that A3 was dragged along the north-south street and then along the east-west street. It is only

after they had proceeded to a considerable distance that the two appellants are said to have gone and stabbed the deceased. The past conduct of

the deceased and the circumstances that he was forcibly dragging A3 to his house were sufficient to raise apprehension in the minds of the

appellants that bodily hurt would be caused to A3 by the deceased. The learned Sessions Judge, therefore, had correctly held that the appellants

were entitled to the right of private defence. In view of the evidence of P.Ws.1 and 2 that these appellants had only caused one injury each, and

the rest of the injuries not being attributable to the present appellants, it can never be held that the appellants had exceeded the right of private

defence. I, therefore, hold that the appellants were within their rights causing on the deceased the injuries attributed to them. The right of private

defence extends not only to causing injury on the deceased but also to causing the injury on P.W.1 who admittedly intervened in the tussle. I am,

therefore, unable to uphold the conviction for either of the offences.

In the result, the conviction of the appellants for the offence under S. 304 (Part II) of the Indian Penal Code and the sentence of imprisonment

for a period of four years, as well as the conviction of the second appellant for the offence under S. 323 of the Indian Penal Code and the

sentences of imprisonment for a period of three months are set aside. This appeal is allowed. The appellants are acquitted. There bail bonds, if any,

shall stand cancelled.