Manoharan vs State

M. Karpagavinayagam, J.—The appellant is the accused in S.C.No.103 of 1987 on the file of the Sessions Judge, South Arcot at Cuddalore. He was convicted for the offence u/s 302 and Section 324(two counts) I.P.C., and sentenced to undergo imprisonment for life and to undergo rigorous imprisonment for three years and the sentences to run concurrently.

The crux of the accusation against the appellant is : that on 25.3.1987 at about 6.30 P.M. the appellant, near his house, attacked P.W.2 Ganapathi and P.W.3 Veerappan and caused simple injuries and during the course of the same transaction he attacked Ganesan by cutting him on the right side of his chest, right upper arm, right fore-arm and left side of the back with an aruval and caused death on the spot.

The brief facts are as follows:-

(a) P.W.I Pichaikaran, P.W.2 Ganapathi, P.W.3 Veerappan, P.W.4 Selvanathan, P.W.5 Allimuthu and P.W.6 Arumugham all belonged to the village Thenpare Colony. The appellant is the resident of Poorikudisai village situate at a distance of 3 km. away from Thenpare Colony.

(b) P.W.5 Allimuthu and P.W.6 Arumugham on 25.3.1987 went to Poorikudisai village to consume toddy. One Sakkarai, father of the appellant Manoharan used to sell toddy near his house. When both of them went and approached for drinking toddy from him, one Vembu, an old man came there and picked up quarrel with P.Ws.5 and 6. P.W.6 asked Sakkarai to give toddy urgently. Therefore, the quarrel ensued between the aged man Vembu and these witnesses. Sakkarai intervened and questioned P.W.6 as to why they picked up quarrel with the old man. P.W.6 retaliated saying that "you are the seller of toddy. Why you come for quarrel." There was wordy exchange between Sakkarai and P.W.6 in course of time. Sakkarai beat P.W.6 and P.W.5.

(c) P.W.5 rushed to Thenpare Colony village and informed P.Ws.1 to 4 about the incident in which P.Ws.5 and 6 were attacked by Sakkarai and the appellant, the son of Sakkari and that P.W.6 was detained in their village. Therefore, P.Ws.1 to 5 one Ganesan - the deceased and one Kalavaradan went to Poorikudisai village at about 6.30 P.M.

(d) They went in search for P.W.6 Arumugham in the house of Sakkarai and others. Since he was not available the witnesses came to Sakkarai and abused him and asked him about the whereabouts of Arumugham. At that point of time, the appellant was cutting Palai by climbing upon the palmyrah tree. On seeing these witnesses were quarreling with his father, the appellant swiftly got down from the palmyrah tree and came near the witnesses with M.O.I aruval. He then questioned them:

There was a wordy exchange between the appellant and the witnesses. Then the appellant showed his aruval to the witnesses and threatened them shouting " " so saying the appellant gave a cut on the chest of the deceased Ganesan. Again when he attempted to cut on the deceased, he warded off the same with the result the hit fell on his right upper arm. P.W.I intervened and asked the appellant not to cut and tried to catch hold of the deceased in order to prevent his being further attacked. The appellant again inflicted injuries on the back of deceased. P.W.2 came running and tried to catch the appellant but he attacked P.W.2 also. P.W.2 sustained injury on the right hand. P.W.3 came near the appellant. He inflicted injury on him also and caused injury on the left thumb. He again attacked P.W.3 on his left shoulder. P.W.4 on seeing this sudden attack by the appellant on the witnesses came running towards the appellant and caught hold of his legs. The appellant with M.O.I bowed down and inflicted injury on the left thigh of P.W.4. On receipt of this injury P.W.4 took out a karikkai mattai which was found on the ground, and attacked the appellant on his head with the result the appellant sustained bleeding injury on his head. In the meantime the deceased Ganesan, who sustained injuries on various parts of the body, fell down on the ground and died. P.W.I took out his towel M.O. 2 and tied on his wound. When P.W.5 intervened in the melee he also sustained injuries. P.W.4, who sustained injury on the thigh was unable to move. So, he also fell down on the ground.

(e) P.Ws.1 to 3 and 5 and Kalivaradan left the village immediately and went to the Kanjanoor Police station at about 8.30 P.M. P.W.I 1 Sub- Inspector of Police at Kanjanoor Police Station obtained a statement from P.W.I which was reduced into writing and got his thumb impression in the statement after reading over the same. Ex.P 1 is the statement. P. W. 11 registered a case in Cr.No.28/87 for the offence under Sections 302, 324 and 323 I.P.C. He prepared Ex.P 12 printed first information report. He gave a telephonic message about the injury to P.W. 13 Ramamoorthi Inspector of Police. Then he dispatched Exs.Pl and P12 to the senior officials as well as to the Court.

(f) P.W. 11 Sub-Inspector of Police rushed to the spot at about 9.30 P.M. On receipt of the telephonic message at 9 P.M. at Villupuram, P.W. 13 Inspector of Police came to the spot from Villupuram Police Station along with the police party at about 10 P.M. At the spot he received the first information report from P.W. 11 and took up investigation. P.W. 13 prepared observation mahazar Ex.P2 attested by P.W.7 Village Administrative Officer and another. He arranged to take photos through P.W. 10 photographer, who took photos of me dead body and the scene. The negatives are M.Os.5,7,9 and 11 and the photos are M.Os.6,8,10 and 12. Then the Inspector of Police recovered M.O.2 blood-stained towel from the body of the deceased, M.O.3 blood-stained earth and M.O.4 sample earth under mahazar Ex.P3 at about 11 P.M. He drew rough sketch Ex.P17 between 12.30 (0.30) A.M. and 2.00 A.M. He held inquest over the body of the deceased and prepared inquest report Ex.P 18 and examined P.Ws. 1 to 6. Thereafter he sent P.Ws.2 to 5 the injured witnesses to the hospital. At 2 A.M. he entrusted the dead boy of the deceased to the constable with a requisition to take him to the doctor for postmortem.

(g) On 26.3.1987 at about 2 P.M., P.W.8, Doctor Dularam examined P.W.5 Allimuthu and found an incised wound 3 cm x 1/4 cm. x 1/4 cm obliquely placed on the front of right upper arm and issued Ex.P6 wound certificate giving opinion that the injuries are simple. At about 2.15 A.M. P.W.8 doctor examined P.W.2 and found the following injuries:

(1) A lacerated injury 6 cm. x 4 cm. x bone deep, involving the superficial and deep muscles and main blood vessels, causing fresh bleeding on the outer aspect of right upper arm.

(2) An incised wound 1/2 cm. x 1/2 cm. x 1/4 cm. on the cleft between the left thumb and index finger.

He issued the wound certificate Ex.P17. He gave opinion that the injuries were simple. At about 2.30 A.M. on 26.3.1987 P.8 doctor examined P.W.3 and noted down the following injuries:

(1) An incised wound 2 cm. x 1/2 cm. x 1/2 cm. on the back of the left thumb covered with blood clot.

(2) An incised wound 6 cm. x 1/2 cm. x 1/2 cm. obliquely placed on the left shoulder and right upper arm.

(3) An incised wound l/2cm x 1/2 cm x 1/4 cm left side chest.

He issued the wound certificate Ex.P8 in which he opined that the injuries were simple. At about 3 A.M. he examined P.W.4 and found an incised wound 2 cm x 6 cm x muscle deep on the front of upper third of left thigh, horizontally placed with blood coming from wound and issued the wound certificate Ex.P9. This injury was found to be simple.

On 26.3.1987 at about 10.50 A.M. on receipt of requisition from P.W. 13, P.W.8 doctor commenced autopsy at about 11.45 A.M. on the body of the deceased. He noticed the following injuries:

External Injuries :

(1) A deep incised wound, obliquely placed 12 cm x 3 cm x lung deep, on the middle third of left side back, injuring in the deep muscles, blood

vessels, and the lung tissue, cutting the posterior aspect of the 7th rib, on the left side lung tissue is visible, with dark coloured fluid blood oozing out of the wound.

(2) A deep incised wound, horizontally placed, 10 cm x 3 cm x lung deep, cutting the superficial and the deep muscles, neighboring blood vessels and the 4th rib on the anterior aspect.

(3) An incised wound, vertically placed 3 cm x 1 cm x 1 cm on the inner aspect of the right upper arm.

(4) An incised wound, obliquely placed 5 cm x 1-1/2 cm x muscle deep, on the upper third of back of right fore-arm.

Internal examination :

On dissection of wound No.1 left 7th rib on the posterior aspect is cut. Superior lobe of the left lung is incised 4 cm x 2 cm x 2 cm on the superior lobe, resulting in collection of about 20 ounces of a dark coloured fluid blood in the thoracic cavity. On dissection of wound Nos.2, 4th rib is cut on the anterior aspect of the right side thorax incising the right lung 4 x 2 x 2 cm on the right middle lobe.

(h) In the meantime, at about 8 A.M. P. W. 13 arrested the appellant in the presence of P.W.7 and another and recovered a confession from him, the admissible portion of which is Ex.P4. In pursuance of the confession the appellant took the police party to Poori Kudisai village and took out M.O.I aruval kept concealed in the kitchen of his house and handed over the same. P.W.13 recovered the same under mahazar Ex.P5 at about 11 A.M. on the same day. At 12 noon he was brought to the police station. At 1 P.M. since the appellant was found with some injuries on his head he made arrangements for sending him to the doctor for treatment. P.W.9 Doctor Gunaseelan examined the appellant at 2.20 P.M. on the same day and noticed a lacerated wound with abrasion about 4" x 1/2" x 1/4" over the centre of the frontal region on the scalp Ex.Pl 1 is the wound certificate wherein this injury was found to be simple.

(i) On 27.3.1987 P.W. 13 sent all the material objects to the Court for causing to send them for the forensic examination along with requisition Ex.P13. Then P.W. 12 the Court Clerk arranged to send those material objects for the forensic examination along with the covering letter of the Magistrate, Ex.P14. Ex.P15 is the Chemical Analyst''s report and Ex.P16 is the Serologist''s report. After finishing investigation P.W.13 filed a charge-sheet against the appellant for the offences under Sections 302 and 324 I.P.C.(3 counts) in respect of P.Ws.2 to 4.

(j) On committal the trial Court on perusal of the records, framed charges against the appellant for the above offences and questioned him. The appellant pleaded innocence and wanted to face trial.

(k) To substantiate the charges framed the prosecution examined P.Ws.1 to 13, filed Exs.Pl to P18 and marked M.Os. l to 7.

After the evidence was over, the appellant was questioned u/s 313 Cr. P.C, with reference to the incriminating materials appearing against him. The appellant chose to deny the offences. He further contended as follows: "On 25-3-1987 at about 5 P.M. when he was climbing up on the palmyrah tree to collect sweet toddy ( uarffri ) P.Ws.5 and 6 in a drunken mood came to his village and picked up quarrel with his father and asked him to supply more toddy; one Vembu, the local resident objected to their behaviour and said that they would not supply toddy to them. Therefore, P.Ws5 and 6 beat the said Vembu. So, the old man ran towards his village, but, however, P.W.6 Arumugham chased him and on the way he happened to see and Rebekka, the wife of Devasahayam, the brother of the appellant. Thinking that the said Vembu concealed himself in her house, P.W.6 used abusive language against the said Rabekka and asked her to send the old man out from her house. He also removed his dothi and showed his private part to the said Rebekka. The father of the appellant questioned his act and asked him to go away. However, P.W.6 did not leave the place. Therefore, Rebekka went to Kanjanoor police station in order to complain against P.W.6. In the mean time P.W.5 challenged that he would bring his man from his village and see that all the village people are finished off once for all. Meanwhile on the complaint of the said Rabekka, two police constables came and took P.W.6 from the village to the police station. Thereafter from Thenpare Colony 40 to 50 persons came in a group to his village and attacked the father of the appellant and the appellant. Then the appellant with the injury on his head went to the police station and gave a complaint to the Station Writer. Thereafter P. W. 1 came and talked to the police. Only then the police arrested him and put him under lock up.

On termination of trial the trial Court, on a consideration of the oral evidence and documentary evidence and the statements u/s 313, Cr. P.C, given by the appellant, found the appellant guilty for the offences under Sections 302 and 324 I.P.C.

Having aggrieved over by the judgment the appellant has resorted to this action by filing an appeal before this Court.

Mr. Jeevaradiinam, learned counsel for the appellant took us through the entire evidence and vehemently contended that the materials available in this case would not be sufficient to hold that the appellant was the culprit. He would also further contend that there are various loop-holes and infirmities in the evidence adduced by the prosecution which have been conveniently overlooked by the trial Court. He would also further contend that the appellant had sustained injury on the head during the exercise of private defence and cannot be convicted for the offence u/s 302 I.P.C., which resulted in his death and that his action would be protected u/s 103 I.P.C., and therefore, the appellant is entitled for acquittal. Mr. Babu Muthu Meeran, Government Advocate representing the Public Prosecutor for the State would repel such submission.

We have carefully considered the divergent contentions raised by learned counsel on either side. The occurrence had taken place at 6.30 P.M. The prelude to the occurrence is that earlier P.Ws.S and 6 came and picked up quarrel and both of them were beaten by the appellant and his father. Due to this P.W.S went to the village and brought witnesses P.Ws. 1 to 6 and two others including the deceased. Even according to the prosecution these 8 to 10 persons came from the village and shouted at the father of the appellant and began to beat both Sakkarai and one Yuthas at the place of occurrence. So, the appellant, who was cutting Palai of palmyrah trees climbed down immediately and came near the prosecution witnesses, objected to their attitude of scolding his father and brother and attacking them and only thereafter the occurrence had taken place. As far as the evidence of the witnesses are concerned, we are not able to find any reason to reject them especially when their evidence is fully in consonance with the medical evidence adduced by P.W.8 doctor. Of course, the appellant was acquitted in respect of the charge u/s 324 I.P.C, for having attacked P. W.4 on the ground that only after the appellant sustained injuries on his head with Karikkai mattai used by P.W.4, the appellant as self-defence caused injury on the thigh of P.W.4. Therefore, merely because some injury was found on the head of the appellant we cannot straightway hold that the appellant had exercised his right of private defence for causing the death of the deceased. Therefore, from the evidence adduced by all the witnesses in the form of deposition before Court and the first information report Ex.P12 which is also fully in consonance with the case of the prosecution as projected through the witnesses, we find that the occurrence had taken place as alleged by the prosecution, due to which the deceased died at the spot and P.Ws.2 and 3 sustained injuries.

Learned counsel for the appellant though initially argued for acquittal on the ground of exercise of private defence u/s 103 I.P.C, he ultimately confined himself to the submission that in the event of this Court coming to the conclusion that the occurrence had taken place as alleged by the prosecution, the appellant could at the most be convicted only for the offence u/s 304 Part I I.P.C., in view of Exception (2) of Section 300 I.P.C., by which the appellant exceeded his right of private defence by causing fatal injuries on the deceased. This submission in the peculiar circumstances of the case has got some force. No doubt it is true that all the witnesses came to the village in order to question the act of the appellant and his father for having illegally detained P.W.6 Armugham in their house. It must also be noted, they came to the village in a group without any weapon. As soon as they entered into the village, they went inside the house of Sakkarai and others in order to search for P.W.6, who was allegedly detained inside the house. Since P.W.6 was not available inside the house, all these persons went near the appellant''s father and his brother Yuthas and picked up quarrel. According to P.W. 1 in cross-examination, he would admit that as soon as they came near the appellant''s father, they beat Sakkarai, father of the appellant and Yuthas, the brother of the appellant and then only the appellant came with the weapon. According to this witness, before the accused attacked the deceased and other witnesses, there was a wordy quarrel between them. Admittedly before this incident as referred to earlier, the appellant''s father Sakkarai and brother Yuthas were beaten black and blue by this crowd. So, in these circumstances, the appellant showed the aruval and asked the group not to come near him and at that point of time, according to P.W.2. the deceased Ganesan went near the appellant. The relevant portion of the evidence of P.W.2 is this :

So, these things would clearly show that the prosecution party numbering about ten, though they did not have any weapon in their hands, they came in a group and caused annoyance to the inmates of the houses by trespassing into the houses on the pretext of searching for P.W.6. Not only that they picked up quarrel with Sakkarai and Yuthas and also beat them. On seeing this, the appellant, who was cutting palai at that point of time on the top of the palmyrah tree climbed down and questioned their act. Even then only conversation was going on between them. The appellant having felt that he would also be attacked showed the aruval asking them not to come near him. Despite this warning, the deceased Ganesan went near him. Only thereafter the appellant attacked him on the chest. While P.W.I caught hold of the deceased for preventing him from being attacked further, the appellant inflicted another injury on the back of the deceased. After this incident all the witnesses surrounded him and thereafter be inflicted injuries on P.Ws.2 to 4. Therefore, it could be seen that the accused started attacking the deceased only after the deceased came near him. Moreover, he came near the witnesses for the purpose of questioning their act of having attacked Sakkarai and Yuthas. Therefore, when the appellant went near them, his purpose was to just ask them to go out of the place by showing the aruval. Though he has got a right of private defence to prevent witnesses from attacking either the appellant or his relationship is not expected to cause more harm that is necessary in the process of self-defence. Here is a case where he not only caused injury on the chest, a vital part but also inflicted injury on the back. According to the doctor P.W.8 both these injuries are fatal and would cause instantaneous death. Therefore, we have no hesitation to hold that the appellant though he has got a right to exercise private defence he has exceeded the same by causing fatal injuries on the chest and back. Both the counsel have cited some authorities in order to show that the act attributed to the appellant in the facts and circumstances of the case would attract exception (2) of Section 300 I.P.C., since he has exceeded the right of private defence.

The first decision cited is, Shivappa Laxman Savadi Vs. The State, wherein a Division Bench of the Karnataka High Court on similar facts of the present case held as follows:

It cannot be said that if the persons who were injured were unarmed then without more the said fact could rule out exercise of the right of private defence, where the person who has resorted to the right of private defence was confronted by three persons, the very superiority in numbers could in all probability have been construed by the accused as an imminent danger to himself thus giving him the signal to act in exercise of the right of private defence more in self protection than with the intent of harming the others.

In another para it has also referred to the observation as follows:

The prosecution story is when these three people had just gone there, the accused brought out an axe and had launched into an attack on them. We are not inclined to believe that situation.

Imagine situation of being confronted by three physically well-built persons and probably fearing the worst for himself in the light of the morning''s incident, he had attacked more with a view to neutralise them so that he could get away from them and in that process he appears to have taken a wild swipe at all of them, one of such swipes bringing about the death of the deceased.

In the instant case the prosecution party numbering about ten persons came there though not with the weapons and created an apprehension in the mind of the appellant by beating the father of the appellant and his brother and in this case also the age of the witnesses was ranging about 20 to 25 years. In the above case, Karnataka High Court convicted the appellant only for the offence u/s 304 Part I, IPC, holding that the appellant exceeded in the exercise of right of private defence. This case, in our view, is fully applicable to the facts of the present case.

In Kesha and others Vs. State of Rajasthan, the Apex Court held as follows:

Where a son, on finding that his father is being beaten up, inflicts injuries on his father''s assailants and the accused persons had received simple injuries possibly as a result of scuffle, it could not be said that the accused are falsely pleading the self defence. They are entitled to the right of self defence. However, when there was no reasonable apprehension that death or grievous hurt would be caused it has to be held that in causing death of the deceased the accused had exceeded their right of self defence. Accordingly they would be liable to the convicted under S.304, Part I and not under S.302 read with S.34.

In yet another decision in Scaria alias Thankan Vs. State of Kerala, the Apec Court had occasion to deal with similar facts of the present case and observed as follows:

Where three persons were about to attack the accused and in fact an injury was inflicted on the forehead of the accused which is on a vital part, it cannot be said that the accused had no reasonable apprehension that some hurt, at least, would be caused to him. In such a case, naturally a reasonable apprehension would have been there in the mind of the accused. It is in this background that the plea set up by the accused was justified in exercise of right of private defence. The plea set up by the accused cannot simply be brushed aside. The circumstances in the instant case revealed that the accused had the right of self-defence. However, having regard to the fact that he inflicted four injuries on the deceased and also a serious injury on another victim, he certainly exceeded the same. Therefore, exception (2) to S.300 IPC is attracted and not the General Exception. He is liable to be convicted under S.304 Part I and not under S.302.

A similar proportion has been laid down in Mahadir Choudhary v. State of Bihar (1996 SCC (Crl.) 883) also. So, in view of the dictum laid down by the Apex Court the part played by the appellant of attacking the deceased when he had apprehension that he would be attacked or his relations could be further attacked inflicting serious injuries on the chest and back of the deceased, would at the most attract Exception (2) of S.300 I.PC, by which he exceeded the right of self-defence conferred to him. Therefore, we are of the view that the conviction and sentence imposed upon the appellant for the offence u/s 302 I.PC, is not valid in law and the same is liable to be set aside.

In the result, the appellant is acquitted in respect of the charge u/s 302 I.P.C. Instead we convict him for the offence u/s 304 Part I, IPC, Normally this Court would impose sentence of 7 years u/s 304 Part I, I.P.C. But, in the instant case we originally thought of awarding compensation to the relations of the deceased. But, however, there are no relations to the deceased. We thought it fit to award some compensation to P.Ws.2 and 3 who sustained serious injuries. So, in view of our decision of awarding compensation to P.Ws.2 and 3 we think it fit to impose the sentence of 4 years for offence u/s 304 Part I, I.P.C. against the appellant.

For the charge u/s 324 I.P.C. (2 counts) in respect of attack on P. Ws.2 and 3 are concerned, the trial court imposed a sentence of three years on each count and directed the sentences to run concurrently.

Today, as per our direction the injured victims viz., P. Ws.2 and 3 are present. They submitted that they were hospitalized for about one month and they suffered a lot. They also showed the scar of the injuries sustained by them on their chest and the hands. They also submitted that they are only agricultural coolies. So, instead of imposing three years'' punishment in respect of offence u/s 3241.P.C., we feel that the interests of justice should be met by imposing a sentence of the period already undergone by the appellant in respect of those offences and in addition to that we think that some compensation could be awarded to P.W.2 Ganapathi and P.W.3 Veerappan. We also heard Mr. Jeevarathinam, learned counsel with reference to the capacity of the appellant to pay the compensation. The accused is also present here. On instruction learned counsel for the appellant submitted that the appellant has got only a land of 2 acres and in the event of any compensation awarded by this Court he would be prepared to sell the land and give the amount to P.Ws.2 and 3 as compensation. So, in view of the above discussion and the peculiar circumstances we think it fit to order compensation for Rs. 10,000/- each to P. Ws.2 and 3. Learned counsel for the appellant seeks time for payment since the appellant is to make arrangement for the sale of the land to get the money. Therefore, the appellant is directed to pay compensation of Rs.20,000/- i.e., Rs. 10,000/- to P.W.2 Ganapathi and Rs. 10,000/- to P.W.3 Veerappan in cash in the presence of the Sessions Judge of South Arcot at Cuddalore within three months and he is prepared to pay the amount on or before 24.6.1997. The Sessions Judge is directed to re- cord the handing over of the money by the appellant to P.Ws.2 and 3 and intimate to this Court about the same immediately thereafter and there- after the appellant could be remanded to custody to undergo rigorous imprisonment for the period five years imposed for the offence u/s 304 Part I. I.P.C. With this observation, the appeal is partly allowed.