Krishnan vs State

A. Packiaraj, J.—This is an appeal preferred by the Appellant against the conviction passed against him for the offence u/s 304 (II) of IPC and sentenced to undergo Rigorous Imprisonment for three years by the Court of Sessions, Pasumpon Muthuramalingam District at Sivaganga.

The charge levelled against the Appellant herein is that on 2.11.1992 at about 2 pm. in the village called Aranapatti, he caused the murder of his brother by throwing him in the Well situated near the Pump-set, which was common to both and that thereby he committed an offence punishable u/s 302 of IPC. The Appellant denied the charges and hence the trial.

The prosecution case, in brief, is as follows: The deceased and the accused are brothers and they are residents of the village called Aranapatti. They had a common Well in their lands which was situated one furlong from their village. However, there was dispute between them about the enjoyment of the said lands. PW. 1 is the son of the deceased. According to him, there was dispute in relation to the partition of the lands also. Both the families viz., the accused as well as the deceased were not in talking terms. The occurrence has taken place on 2.11.1992. About two years prior to the occurrence, there was a panchayat by PW. 2 to settle the dispute. However, the accused and the deceased were not prepared for any settlement and consequently, their enmity subsisted.

On 2.11.1992 at about 2.00 p.m., the deceased with the help of PW. 3 had been to his lands, with weapons such a crow-bar and other weapons to break the boulders in his field and after breaking them into pieces, went to the common pump-set and wanted to keep the weapons inside. The accused, on seeing this, objected the deceased from keeping these weapons inside the motor pump-set. At that time, PW. 2, who had taken out a piece of land for lease from the deceased, had also come to the scene. He tried to intervene and directed the brothers viz, the accused and deceased to go to their respective houses. However, they did not. In spite of the objection raised by the accused to keep the weapons inside the pump set, the deceased tried to do so and consequently, the accused tried to break the door-MO. 5 and thereupon, the deceased took the Aruval (bill-hook) and attacked the accused aiming a blow on the head, which blow fell on his hand and again, the deceased tried to inflict another cut, which caused on his right flank. The accused sustained two injuries. Immediately thereon the accused took a stone MO. 6 and by hitting the face of the deceased, pushed him down. The accused and the deceased were apparently standing near the Well. The deceased fell into the Well and he died.

The accused, after sustaining bleeding injuries, immediately rushed to the Ulagampatti Police Station and gave a report Ex.P 5 to PW. 8, the Head Constable attached to that Police Station. He registered the same in Crime No. 79/92 for the offence u/s 324 IPC and sent him to the Government Hospital, Valayapatti, where PW. 11 Doctor Natarajan treated him. He issued wound certificate- Ex.P 11. The injuries found on the accused are as follows:

An incised wound over the dorsum of the middle of the left forearm about 4 cm x 1/2 cm x 1/2 cm.

An incised wound over the left axilla about 1 cm x 1/2 cm x 1/2 cm.

The doctor is of the opinion that the injuries are simple in nature.

PWs. 2 and 3, who had witnessed the occurrence, went to the village and informed the matter to the daughter of the deceased, who in turn asked them to wait till PW. 1, her husband comes. After the arrival of PW. 1, the matter was informed to him, who in turn went in search of PW-6 Village Administrative Officer and gave a report Ex.P 1, which was reduced into writing and the same is signed by PW. 1 Thereafter, the Village Administrative Officer and PW. 1 went to the scene of occurrence and found only towel, floating in the Well. The Village Administrative Officer prepared a special report-Ex.P2 and sent that through Talayari to the Police Station, where PW.9-Sub-Inspector of Police received the same and registered it in Crime No. 80/92 at 10 pm. for the offence punishable u/s 302 of IPC. He prepared Ex. P7 printed FIR and sent the original to the Court and the copies thereof to his superior Officers.

PW. 13, the Inspector of Police, on receipt of the complaint given by the accused in Crime No. 79/92 for an offence u/s 324 IPC, investigated the same and referred the matter. He also received a copy of the FIR in Crime No. 80/92 and went to the scene of occurrence late in the night and on the next day morning at about 7 a.m., he prepared Observation Mahazar Ex.P 3 in the presence of PW. 3. He also prepared Ex.P 18, the Rough Sketch. Thereafter, he conducted the inquest from 8 a.m. on that day, during which period, he examined PWs. 1, 2, 3 and 6. Ex.P 19 is the Inquest Report. He recovered MOs. 5 to 9 at the scene of occurrence, under mahazar-Ex.P 4 and the same were attested by PW. 4. The Investigation Officer, after conducting the inquest, sent the body for post-mortem with a requisition letter Ex.P 8 through the constable.

PW.10, the doctor, attached to Valayapatti Government Hospital, on receipt of the body, conducted post-mortem at 4.45 p.m. on 3-11-1992 and found the following injuries:

11/2" in diameter just above the right wrist .

3" in diameter over the middle of the right leg.

2" in length-a vertical abrasion just above the medial malleolus of the right leg.

11/2" in diameter over the middle of the left leg.

31/2" in length just below the cubital forsa of left elbow.

Very minor abrasion over the tip of the penis (around the urethral orifice)

Irregular horizontal abrasion near the frunum of penis (Penis-circumcised).

Irregular minor abrasion over the base of the left side of the scrotum.

1/2" in diameter over the middle of the right fore-arm.

1/4" in diameter over the bridge of the nose.

Irregular incised like wound slightly obliquely situated over the base of the right side of the occipital region-measures 11/2" x 1/4" in size.

O/E Abdomem-not distended on opening it.

The doctor issued Post-mortem certificate-Ex.P 9 and he is of the opinion that the cause of death could be due to Cardio-respiratory embarrassment (not clear).

In the mean time, as soon as PW. 13 reached the scene of occurrence, he caused the Material objects to be sent for analysis and after conclusion of the investigation, filed a final report against the accused for an offence u/s 302 of IPC.

The accused was examined u/s 313 of Code of Criminal Procedure with reference to the incriminating materials found against him and he denied the same. He filed a written statement along with the statement u/s 313 of Code of Criminal Procedure, which is to the effect that on 2-11-1992, he went to take water from the Well and when he went to switch on the motor and switched on the same, the deceased came there and switched off the motor and locked the door of the weapon room and when the accused questioned the deceased as to why he did, so, the deceased immediately thereon, aimed a cut on his head with Aruval (bill-hook), which was warded off and the deceased once again cut him on the right flank and the accused sat down with giddiness. At that moment, the deceased lost his balance while trying to proceed from that place and fell into the Well.

The prosecution in order to establish their case, had examined PWs. 1 to 13, marked Exs.P 1 to P 19 and produced MOs. 1 to 10. The prosecution examined PW. 10, the doctor, who conducted post-mortem on the body of deceased on 3-11-92 and found eleven injuries in all. He was of the opinion that the death is due to Cardio-respiratory embarrassment (not clear).

However, it is not out of place for me to mention that absolutely there is no indication that any injury was caused on account of the accused attacking the deceased with the stone on him. In the circumstances, all that has been proved is that the death has been caused due to the fall in the well and the fact of himself getting drowned.

The next question that arises for consideration is whether the accused is in any way responsible for the fall. The prosecution has examined PW. 2 and 3 to speak about the occurrence. It is the accepted case of the prosecution that the Well and the motor pump-set were in the common enjoyment of the accused and the deceased. The evidence of PWs. 2 and 3 would disclose that the deceased, with a view to deposit the weapons, such as crow-bar and other articles, used to break the boulders to pieces, opened the pump-set room. The same was objected to by the accused and thereupon, the deceased with Aruval (bill-hook) attacked the deceased. Only after sustaining two injuries, even according to the case of the prosecution, the accused took up the stone and hit the deceased and pushed him inside the Well.

It is pertinent to note that Aruval (bill-hook) is not a weapon used for breaking the boulders. It is a weapon used for cutting wood. Therefore the deceased had no reason to be in possession of a bill- hook, if he wanted to break the boulders to pieces. However, he has used Aruval (bill-hook), when the accused was totally unarmed. We have to see whether the person being attacked with Aruval, will ever keep quiet and thus allowing him to be attacked. The age of the accused then was about 55 years, and the prosecution cannot expect him to run from the scene. Therefore, he was placed in a piquant situation that he has to necessarily save himself.

It is the admitted case of the prosecution that the accused was not armed with any weapon and as such, one cannot expect him to take care of himself by any means except to wriggle out from the situation by doing whatever he can to save his life and according to the evidence of PWs. 2 and 3, he pushed the deceased down. But, unfortunately, the occurrence having taken place at the edge of the Well.

Though the above is the prosecution case as revealed by PWs. 2 and 3, the further case of the prosecution is that PW. 3, who had seen the occurrence, has narrated the incident to PW. 1, who in turn, said to have given the report. However, on reading the evidence of PW. 1, it does not disclose the fact that PWs. 2 and 3 told him about the fact of accused pushing down the deceased into the Well.

It is not out of place to observe the fact that the earliest report which has been registered in Crime No. 79/92 is the report given by the accused about seven hours prior to the registration of the present complaint, wherein the accused has come forward as to what has happened and which is in line with the evidence of PW. 1.

It is the specific case of the accused that after the deceased attacked the accused twice with an aruval, he tried to run, during which, he slipped and fell into the Well. Therefore, in such circumstances, I feel that the evidence is likely to prove or establish that it was the accused who had pushed the deceased inside the Well. Even assuming the argument that the accused had pushed the deceased, the specific case of the prosecution is that he had done so only after he had received two cut injuries from the hands of the deceased and the deceased was armed with aruval and had not stopped attacking the deceased and it is at that time, the accused who was totally unarmed, had pushed him solely with a view to wriggle out from the situation.

It will not be out of place for me to state that the learned Judge has held that the accused has pushed the deceased in the Well and however, it cannot be inferred that he had the intention to cause the death of the deceased and consequently had convicted him u/s 304 Part II instead of 302 IPC. I am further of the view that the accused had acted in the exercise of the right of private defence when he pushed the deceased down. While considering the exercise of private defence, Court is not merely bound to consider the nature of injuries sustained by the accused and whether those injuries would necessitate him to have followed up with the action that had resulted in the death of the deceased. But it is the reasonable apprehension on the mind of the accused that has to be considered by the Courts in deciding whether the accused was justified in doing the follow up action that had unfortunately resulted in the death of the deceased. In the present case, the accused who was totally unarmed has been placed in a situation wherein he was being pushed by the deceased with the aruval (bill-hook) and he has already sustained injuries on the vital part of the body. Though the injuries may be simple in nature, I have no hesitation to hold that the accused had apprehended danger to his life and consequently had pushed him down, but unfortunately the deceased died. Hence, I hold that the accused has committed the act solely out of defending himself and consequently, has acted in exercising his right of defence and he is entitled to the right of defence enshrined u/s 96 of IPC and acquit him of the offence u/s 304 (II) of IPC.

Consequently, I set aside the conviction and sentence passed on the accused by the learned Sessions Judge and acquit the accused. The bail bond executed by the Appellant, if any, shall stand cancelled.

In the result, the Criminal Appeal is allowed.