In Re: S. Natesan

Paul, J.—The Appellant who figured as A-3 before the Court of Sessions, Tiruchirapalli Division has been convicted of an offence u/s 302

of the I.P.C. by the learned Sessions Judge and sentenced to imprisonment for life while three other accused who were arraigned along with him

before the Sessions Court were acquitted by the learned Sessions Judge of the charges framed against them.

The Appellant is the son of A-1 Vembadi whose brother-in-law is A-2 Chinnasamy, and A-4 Rajendran is the son-in-law of A-1.

A-1 resides in the Bazaar Street at Pallapalayam and is running a provision stores which is situate in front of his house. After the death of his

wife, A 1 married one Mook-kayee about five years ago. According to the prosecution, the deceased Ganesan who was also living in the same

village was in illicit intimacy with Mookkayee and on account of it the Appellant and the other accused were inimically disposed towards him; and

it also appears from the evidence adduced on the side of the prosecution that Ganesan sent by post a petition Ex. P-14 against the Appellant and

other accused and certain others alleging that those persons were attempting to kill him and that petition was received by P.W.14 the Sub

Inspector of Police of Chinnadharapuram and was investigated into by P.W.16. the Inspector.

According to the evidence adduced en the side of the prosecution through P. Ws.1 and 4 to 7, on 25th October, 1973 the deceased who had

gone to Karur in order to send Ex. P-14 by post to the Police, returned to Pallapalayam by bus and got down from the bus at the bus stand at

about 2 P.M. and was proceeding towards his house through the Bazaar Street. P.W. 7 had got down from a bus at the bus stand and he was also

proceeding along the Bazaar Street, going behind the deceased. P. Ws.1 and 4 who are brothers and who are living in separate portions of the

same house just opposite to the house-cum-provision store of A-1, were sitting in front of their house and they both saw the deceased Ganeasan

coming from west to east along the Bazaar Street and heard A-1 who was in his shop shouting that Ganesan was coming and he should be dealt

with and they then taw the Appellant, A-2 and A-4 came running from the lane which was immediately to the east of A-1''s house and noticed that

the Appellant was armed with a kuthukkole while A-2 was armed/with a veechuaruval and A-4 was armed with a stick and A-1 coming out of the

shop with a Kuthukkole in his hand and they saw the Appellant and A-2 and A-4 obstructing Ganesan and heard the Appellant and A-2 and A-4

instigating A-1 to stab Ganesan and they then saw A-1 stabbing Ganesan with the Kuthukkole M.O.1 on the right arm and again on his chest and

the point of the Kuthukkole piercing through the chest and coming out on the other side and the Appellant and the other accused running away

from the scene while Ganesan with the Kuthukkole still embedded in his body ran to a distance of 20 feet and then fell down. P.W.5 and P.W. 6

who were coming along the bazaar street at that time and P.W.7 who as we have already said was going along the Bazaar Street behind Ganesan,

claim to have witnessed this occurrence, P.W.6, who is the brother of the deceased then went to the house of the V.M., P.W.10, at about 3 P.M.

and told him what had happened and took him to the scene of the occurrence where P.W 10 saw Ganesan lying in front of the house of P.W 9

with the Kuthukkole stick embedded in the wound and P.W 6 then removed the weapon from the wound and bandaged the injuries on Ganesan

and he then went to his house, left M.O.1 the kuthukkole there and arranged for a taxi to be brought from Karur and in that taxi he took Ganesan

to the Karur Hospital; and there P.W.2, the Woman Civil Assistant Surgeon examined Ganesan at about 6-30 P.M. and found on him a punctured

wound 1/4"" in length and 1/2"" in breadth, being the wound of entry over the middle of the arm anterior aspect; a wound of exit 1"" in length and 1/2

in breadth over the posterior surface of the middle of the right arm; a punctured wound 1-1/4"" in length situated over the right side chest wall

interior aspect; a punctured wound 1"" in length and 1/2"" in breadth situated over the left loin lateral to the left anterior superior iliac spine. The

doctor opines that these injuries could have been caused by means of a weapon like M.O.1 at 4-30 P.M. that evening, She sent the intimation Ex.

P.2 to the police. A requisition Ex. P-6 was also sent to P.W.8 the Tahsildar, Karur and it reached him at 7 p.m. whereupon he proceeded to the

hospital and worded the statement Ex. P-7 given by Ganesan in the presence of P.W.2. Mean-while P.W.7 had gone to Karur and sent the

telegrams as D-23 and D-26 to the Deputy Superintendent of Police and the Sub Magistrate to the effect that Vembady party Natesan murdered

Ganesan with a kuthukkole.

The Sub Inspector of Karur received Ex. D-2 at 6-35 P M. went to the hospital and he recorded the statement Ex. P-12 given by Ganesan and

he registered a case u/s 307 I.P.C. but transferred the F.I R. to the Chinnadharapuram Police Station since the place of occurrence was within the

jurisdiction of that police station. P.W. 14 the then S.I of Police, Chinnadharapuram received the transferred F.I.R. at 7 A.M. on 26th October

1973 from the Karur Police Station and he registered a case in Crime No. 151/73(sic) u/s 307 I.P.C. and sent express reports to the concerned

officers. At about 5-43 A.M. P.W. 12 a constable of the Woraiyur Police Station received from the Tiruchirappalli Headquarters Hospital, to

which hospital the deceased Ganesan had been sent from the Karur hospital, the intimation of the death of Ganesan at the hospital. P W.12

transmitted the message to the Karur Police Station and P.W. 11 in his turn transmitted it to the Ghinnadharapuram Police Station by means of the

memo Ex. P-13. P.W. 14 the then S. I. of Police, Chinnadharapuram on receiving Ex. P-13 altered the section into Section 302 I.P.C. and sent

express reports to the officers and proceeded to the Tiruchirappalli Head-quarters Hospital. P.W.16 the Inspector of Police, Velayudhampalayam

received the express F.I.R. at 12-13 P.M. on 26th October 1973 and he also proceeded to the Tiruchirappalli Head-quarters Hospital and held

the inquest over the dead body of Ganesan during the course of which he examined P. Ws.1, 4 to 7 and Ors.. He then proceeded to the scene of

the occurrence on 27th October 1973 and prepared an observation mahazar Ex. P-8 and seized the bloodstained earth M.O. 2 from the scene

under a mabazar Ex. P-9. He also seized the kuthukkole M.O.I which was produced by P.W.6. He examined P.W.9 and others. On 29th

October 1973 he examined P. Ws. 2, 3 & 11. At 5 P.M. on 4th November 1973 he arrested all the accused at Tirumanilaiyur.

Before the committing Court, all the accused including this Appellant refuted the circumstances appearing in the evidence against them. Before

the trial Court however this Appellant stated when questioned u/s 342 CPC that at about 4-30 P.M. on 25th October 1975 when he was

returning to his place with a kuthukkole he saw Mook-kayee, wife of A-1, coming along with the deceased Ganesan and P.W.7, whereupon he

caught hold of Mookkayee by her hand and dragged her and at that time Ganesan and P.W.7 who were armed with kuthukkole and aruval

respectively came to attack him and in order to save his life he, the Appellant stabbed Ganesan with the kuthukkole and also stabbed P.W.7 who

escaped. He further stated that M.O.1 was the kuthukkole which Ganesan was having during the occurrence. No defence witnesses were

examined.

The learned Sessions Judge disbelieved the evidence of P. Ws 1 and 4 to 7 who claimed to be eye-witnesses to the occurrence. He did not

place any reliance on the dying declaration Ex. P-7 recorded by P.W.8, the Tahsildar from Ganesan or the statement Ex.P.12 recorded by the S.

I. from the deceased. He found that the occurrence must have taken place at about 4-30 P.M. but for reasons best known to them the prosecution

had changed the time of occurrence and P. Ws.1 and 4 to 7 would have it that the occurrence took place at 2 P. M. He came to the conclusion

that P. Ws.1 and 4 to 7 were not reliable and were not speaking the truth but went on to observe that ""the above conclusion would necessarily

lead to the farther conclusion that the case as set out by the prosecution cannot be accepted but In this particular case the further conclusion that

the accused cannot be held guilty does not necessarily follow, for the simple reason that of the four accused this Appellant has admitted having

stabbed Ganesan with the kuthukkole and therefore the discussion and conclusions above would only show that the case as set out by the

prosecution against A-1, A-2 and A-4 cannot be accepted"". He then considered the plea of self-defence put forward by this Appellant when he

was questioned u/s 342 Code of Criminal Procedure and found that there were no circumstances appearing in the evidence which would render

probable that it was in self-defence that this Appellant stabbed Ganesan and hence he convicted the Appellant of an offence u/s 302 I.P.C.

acquitting all the other accused of the charges framed against them.

We entirely agree with the finding of the learned Sessions Judge that the evidence of P. Ws.1 and 4 to 7 cannot be relied upon. Of these

witnesses, P.W.5 is the brother of the deceased. P.W.10 has stated that the paternal aunt of Ganesan is married to P.W. 4''s paternal uncle Mari,

and that be (P.W. 10) had issued solvency certificates in order to enable P.W.1 and P.W.4, who are brothers, to come out on bail in some cases

and both P. Ws.1 and 4 are under police surveillance. The evidence of P.W.5 is that his sister Chinnammal eloped with Ganesan''s brother

Muthukrishnan and eventually married him and further Muthukrishnan had married his paternal uncle''s daughter Pappayee. Therefore all these

witnesses P. Ws.1 to 6 are related to the deceased. P. W. 7 admits that be has known Ganesan since his childhood and hence it was that he

proceeded to Karur and gave the telegrams with regard to the occurrence to the police officials and also to the Sub-Magistrate.

The occurrence had taken place, according to the prosecution in the Bazaar Street at about 2 P.M. in the afternoon. P.W.1 states that during

the occurrence people were walking along that street and about 10 to 20 persons would have witnessed the occurrence. In the committing Court

also he had stated that about 50 persons witnessed the occurrence. P.W.4 has stated that about 10 to 20 persons were walking along the street

during the occurrence; but he would pretend that he did not know whether those persons witnessed the occurrence, even though before the

committing Court he had stated (vide Ex. D-16) that 40 persons witnessed the occurrence. P.W.5 had also stated that during the occurrence

people of various communities were walking along the Bazaar street. Yet only P. Ws.1 and 4 to 7 of whom P. Ws.1 and 4 to 6 are related to the

deceased and P.W.7 who has known the deceased since his childhood, have been put forward as witnesses to the occurrence.

X X X

[The discussion of fact is omitted: Ed]

Taking all these circumstances into consideration we agree with the findings of the learned Sessions Judge that no reliance can be placed on the

testimony of P. Ws.1 and 4 to 7 and that their version does not represent the truth. With regard to the statement Ex. P-6 recorded from Ganesan

by the Tahsildar P.W.8 and the statement Ex.P.12 recorded from Ganesan by the Sub Inspector P.W.11 we agree with the learned Sessions

Judge that the fact that Ganesan had in them attempted to implicate others also falsely, would render those statements wholly unreliable. The

acquittal of A-1, A-2 and A-4 was therefore perfectly justified. But then the learned Sessions Judge, purely on the basis of the statement given by

this Appellant before the Sessions Court has convicted this Appellant of an offence u/s 302 I.P.C. This in our view is not correct. First of all, it has

to be noted that the charge framed against all the four accused is that in furtherance of a common intention to commit the murder of one Ganesan

they ""committed the murder of the said Ganesan by A-2 to A-4 wrongfully restraining the said Ganesan while A-1 stabbed Ganesan by means of a

kuthukkole"" as a result of which Oanesan died and that thereby A-1 to A-4 had committed offences under Ss.341 and 302 I.P-C. read with

Section 34 I.P.C. and the evidence of P. Ws.1 and 4 to 7 was in support of such a charge. But this Appellant has been convicted of an offence u/s

302 I.P.C., for having actually stabbed Ganesan with a kuthukole and thus caused his death, on the basis of what he stated when he was

questioned u/s 342 Crl.P.C.

Section 342 Code of Criminal Procedure states that for the purpose of enabling the accused to explain any circumstances appearing in the

evidence against him, the Court may at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the

Court considers necessary sub-S.(3) of that section states that the answers given by the accused may be taken into consideration In such inquiry or

trial. Sub-S.(4) states that no oath shall be administered to the accused when he is examined under sub-S.(1).

Now, in this case the question actually put to the Appellant, in reply to which the Appellant gave a statement on the basis of which he has now

been convicted, contain a summary of the evidence of P. Ws. 1, 4, 3 and 6, that when on seeing Ganesan proceeding along the street, A-1 who

was sitting in his shop shouted that Ganesan was coming whereupon A-2 to A-4 rushed into the street from the lane adjacent to the east of the

house of A.1, A-2 armed with an aruval, A-3 armed with an iron kuthukkole and A-4 armed with a stick and A-1 came out of the shop with an

iron kuthukkole and A-2 to A-4 waylaid Ganesan and prevented him from proceeding further and instigated A-1 to stab Ganesan upon which A-1

stabbed Ganesan with kuthukkole on the right hand and right side of the chest and the Appellant was asked what he had to say. The reply of this

Appellant to that question was:

No. That evening at 4-10 p.m. while I was returning with a kuthukkole to the village I saw Mookayee Ganesan and P.W.7 coming and I pulled

Moookkayee by her band Whereupon the deceased and P.W.7 ran and brought a kuthukkole and an aruval respectively and Ganesan came to

cut me with the kuthukkole M.O.1(sic); whereupon in order to save myself I stabbed Ganesan with a kuthukkole and also stabbed P-W.7 but

P.W.7 escaped that stab and ran away,

The learned Counsel for the Appellant Mr. V.T. Rangaswami Iyengar pointed out that the learned Sessions Judge had dissected the aforesaid

statement and accepted a part of it for the purpose of finding the Appellant guilty of an offence u/s 302 I.P.C. and has rejected the other part and

that is contrary to law. In support of this contention he has cited the decision in Dadarao v. The State of Maharashtra AIR 1974 S.C. 382 wherein

it has been observed ""it may not however be overlooked that the admission made by the Appellant (in that case also u/s 342 Crl.P.C.) must be

read as a whole and the statement of the Appellant on this aspect is not capable of dissection because the particular part thereof on which the High

Court relied is inexricably connected with the other part which the High Court has not taken into consideration."" Yet another decision cited by the

learned Counsel Mr. V.T. Rangaswami Iyengar is the one in the State of Gujarat and Another Vs. Acharya D. Pandey and Others, etc., wherein

the Supreme Court has observed as follows:

We are asked to infer the guilt-of-the accused No. 1 on the basis of the statement made by him wider Section 342, Code of Criminal Procedure

We cannot split that statement ""into various parts and accept a portion and reject the rest. We have to either accept that statement as a whole or

not rely on it at all. to his statement the accused pleaded that he was not guilty and if his statement is taken as a whole, it does not show that be

was guilty of any offence.

In Kannail Singh v. State of Punjab 1954 M.W.N. Cri.83 the Supreme Court has observed as follows:

with reference to the statement of the accused u/s 342 Cr.P.C., it is true that if It is sought to be used as an admission it must be read as a whole;

but where it consists of distinct and separate matters, there is no reason why an admission contained in one matter should not be relied on without

reference to the statements relating to other matters. In this case the admission of the Appellant that be was present at or near the scene of

occurrence is distinct and separate from his explanation as to how he received the injuries. We do not see any objection to the statement of the

Appellant that he was present at the scene of the occurrence from being used as an admission.

The learned Public Prosecutor in support of his contention that if a question is properly put to an accused and he chooses to make a statement

which inculpates himself, there is no reason why his answer should not be taken into account, has cited before us the decision in The The Public

Prosecutor Vs. V. Viswanathachari, and Nishi Kant Jha v. The State of Bihar AIR 1969 S.C. 423 and has argued that the Court was entitled to

take into account the confession of facts made by the Appellant and in the absence of circumstances appearing in the evidence which would

support his plea of justification for those acts, the learned Sessions Judge was right in having convicted the Appellant for an offence u/s 302 I.P.C.

But then, in those two cases it was not on the basis of the statement made by the accused u/s 342 Code of Criminal Procedure that he was

convicted, but on the basis of certain statements made by him elsewhere and as such those two decisions have no relevance to the case now

before us.

In Narain Singh v. The State of Punjab 1963 M.L.J. Cri. 447 it has been held by the Supreme Court that if the accused person in his

examination under 8.342 Code of Criminal Procedure confesses to the commission of the offence charged against him the Court may, relying upon

that confession, proceed to convict him, but if he does not confess and in explaining circumstances appearing in the evidence against him sets up his

own version and seeks to explain his con-duct pleading that he has committed no offence, the statement of the accused can only be taken into

consideration in its entirety and it is not open to the Court to dissect the statement and pick out a part of the statement which may be in criminative

,and then to examine whether the explanation furnished by the acccused for his conduct is supported by the evidence on record. If the accused

admits to have done an act which would bat for the explanation furnished by him be an offence the admission cannot be used against him divorced

from the explanation. Where a person accused of committing an offence sets up at his trial a plea that he is protected by one of the exceptions,

general or special in the I.P.C., or any other law defining the offence the burden of proving, the exception undoubtedly lies upon him. But this

burden is only undertaken by the accused if the prosecution case establishes that in the absence of such a plea he would be guilty of the offence

charged."" In that case the accused was charged with the offence of murder being armed with a stick. The evidence in support of the ease was

unreliable. The accused admitted that he had caused injuries to the deceased with a kirpan carried by him, but he explained that he caused the

injuries when he was thrown down and the deceased was attempting to strangulate him. In these circumstances, the Supreme Court held that:

the plea of self-defence had to be considered as a composite plea and it was not open to the Court to investigate whether the accused could have

reasonably apprehended such injury to himself as justified him in causing the death of his opponent. The prosecution case did not by reliable

evidence establish affirmatively that the accused bad done any act which rendered him liable for the offence of murder. His responsibility, if any,

arose only out of the plea raised by him; if the plea amounted to confession of guilt the Court could convict him relying upon the plea but if it

amounted to admission of facts and raised a plea of justification, the Court could not proceed to deal with the case as if the admission of fact which

were not part of the prosecution case was true, and the evidence did not warrant the plea of justification.

That decision will apply on all fours to the facts of the case now before us. Here also the prosecution did not by reliable evidence establish

affirmatively that the Appellant had done an act which rendered him liable for the offence of murder. On the other hand, the prosecution tried to

establish that it was A-1 who dealt the fatal injuries while the Appellant and others merely surrounded and obstructed the deceased. But, when the

Appellant was questioned u/s 342 Code of Criminal Procedure he contended that it was he and not A-1 who stabbed the deceased and that he

stabbed the deceased in the exercise of the right of private defence of his person. The learned Sessions Judge took that part of the Appellant''s

statement in which he had stated that be stabbed the deceased and dissected it from the other part of his statement in which he stated that he did

so in the exercise of bit right of private defence and then proceeded to consider the latter plea and held that the plea was not supported by the

circumstances appearing in the evidence and proceeded to convict the Appellant of the substantive offence of murder punishable u/s 302 I.P.C.

when he had been charged only with offences u/s 302 read with 34 I.P.C. and Section 341 I.P.C. That he cannot do.

We therefore find that the conviction of the Appellant in this case, on the basis of his statement u/s 342 Code of Criminal Procedure when the

prosecution evidence regarding the occurrence had been completely disbelieved and the evidence of the eye witnesses bad been found to be

unreliable, has to be and is set aside and the Appellant acquitted of offence u/s 302 I.P.C. The appeal is therefore allowed.