Rajendran vs State

N. Dhinakar, J.—The appellant who hereinafter will be referred to as ''the accused'' was tried before the learned Sessions Judge, East

Thanjavur for an offence of murder on an allegation that at 5.30 P.M. on 1.6.1981, he cut Amirthalinga Pandithar with an aruval M.O.1

indiscriminately, as a result of which, the said Amirthalinga Pandithar died. To prove the charge against the accused, the prosecution, before the

trial court, examined P.Ws.1 to 17 and marked Exs.P.1 to P.21 as well as M.Os. 1 to 9.

The case of the prosecution as could be discerned from the oral and documentary evidence can be briefly summarised as follows:-

P.W.4 is the wife of the accused. The deceased is the son of the senior paternal uncle of P.W.4. P.W.0 10 is the son of the deceased. P.W.2 is

the brother of P.W.4 and brother-in-law of the accused. P.W.7 is the concubine of the accused. The accused was a homeopathy doctor. The

accused and P.W.4 after their marriage, were residing in a house at Thirumanjanam Street in Tirupugalur. The accused developed illicit intimacy

with one Kamalam and P.W.4 left her house on account of that. A panchayat was convened and P.W.4 was advised to go and stay with her

husband. P.W.4 thereafter was staying with her husband, the accused in the case. The accused once again developed intimacy with P.W.7, a

muslim lady, as a result of which, the P.W.4 left her matrimonial home and took up her residence with her younger brother P.W.2. She was eking

out her livelihood by doing coolie work. The deceased who is the son of the senior paternal uncle of P.W.4 used to question the accused and take

him to task for his wayward activities. It is the further case of the prosecution that on 19.4.1981 a quarrel ensued between the accused and the

deceased and the accused sustained injuries at the hands of the deceased in respect of which a complaint was laid by the accused against the

deceased which stands marked as Ex.P.19 in this case. At about 1.00 P.M. on 1.6.1981 he took P.W.7. the concubine of the accused to task

and a quarrel ensued between the deceased and P.W.7, which was witnessed by P.W.2 and others. This is said to be the immediate motive for the

attack made by the accused on the deceased.

At about 5.30 p.m. P.W.1, a carpenter by profession, was working in the house of one Gopalsami and at that time the deceased went there and

requested P.W.1 to go ever to his house and make a small bamboo fence. This was at 3.00 P.M. P.W.1 told him that he would come in the

evening and accordingly he went to the house of the deceased, at about 5 P.M. and was making the bamboo fence. At about 5.30 P.M. the

accused came to the house of the deceased armed with an aruval M. O.1 and went inside. He came out dragging the deceased to the road and

after pushing him down cut him 5 or 6 times on various parts of his body, as a result of which Amirthalinga Pandithar fell down and died. The

accused left the scene carrying with him the aruval. The accused was seen wearing a shirt. M.O.2 and a lungi, M.O.3 at that time. The occurrence

was witnessed, apart from P.W.1, by P. Ws.2 and 3. P.W.1 after the incident proceeded to Nannilam Police Station, which he reached by 6.30

P.M. There he gave a complaint Ex.P. 1 to P.W.8, the Sub-Inspector of Police, who on the basis of the said complaint, registered a case in Crime

No. 141 of 1981 u/s 302, IPC and prepared express reports. Ex.P.5 is a copy of the printed first information report. Express reports were sent to

the Court as well as to the higher officials.

On receipt of the information about the registration of the crime, P.W. 16, the Circle Inspector of Police who was in charge of Nannilam Circle

took up investigation in the case and reached the scene of occurrence by 8.15 p.m. where he prepared the observation mahazar, Ex.P.7 and drew

a rough sketch Ex.P.21. P.W.16 from near the dead body seized blood stained earth, M.O.7 and sample earth, M.O.8 under a Mahazar Ex.P.8

attested by P.W. 11 and another. He conducted inquest over the dead body of Amirthalinga Pandithar in the presence of Panchayatdars between

10.00 p.m. and 1.00 a.m. on 1/2.6.1981, during which he questioned and recorded the statements of P. Ws.1, 2 and 3. Ex.P.9 is the inquest

report. After the inquest, he handed over the dead body with his requisition Ex.P2 to a constable for conducting autopsy on the dead body of

Amirthalinga Pandithar.

P.W.6, the Civil Assistant Surgeon attached to the Government Hospital, Lalgudi, on receipt of the requisition, Ex.P2 conducted autopsy on the

body of Amirthalinga Pandithar at about Noon on 2.6.1981 and found the following injuries:

1.A cut injury on the right forearm close to elbow in front 4""x2""x1"".

A cut injury in the right shoulder joint size 4"" x 2"" x 1"" right humerus is protruded cut in two pieces.

A cut injury on the left forearm on the medial side size 3"" x2""x 1"".

A cut injury on the right side of neck, size 6"" x 2"" x1"". It starts from the angle of the mandible to cervical spine, C6.

A cut injury on the back of neck below the occiput, size 2""''x 1/2"" x 1/2"".

A cut injury on the back on the left side, size 1"" x 1/2"" x 1/4"".

He issued Ex.P3, the Post-mortem Certificate, with his opinion that the deceased would appear to have died as a result of injury to the vital

structures.

P.W. 16. in the meantime, on receipt of the information reached Enangudi Choultry, where he arrested the accused at about 2.00 a.m. on the

morning of 2.6.1981. When questioned, the accused came out with a statement and Ex.P. 10 is the admissible portion of the said statement, which

was attested by P.W.11. The accused then took the police party to a nearby dry tank from where he produced M.O.1 and the same was seized

under a Mahazar Ex.P.11 which was also attested by P.W.11. M. Os.2, 3 and 9, the clothes of the accused were also seized under a Mahazar

Ex.P.12 attested by the same witnesses. The accused was brought to the police station and when his body was searched, the officer found an

injury and, hence, he was sent to the doctor for treatment.

On being produced by the police with a memo, the accused was examined by P.W.6, the doctor at about 3.00 p.m. on 2.6.1981 and he

noticed an abrasion on the left ear on the lateral aspect measuring 1/2"" x 1/4"". He issued Ex.P.4, the original of the accident register, with his

opinion that the injury is simple in nature. Ex.D. 1 is the copy of Ex.P.4.

On 2.6.1981, P.W.16 continued his investigation, questioned P. Ws.4 and 5,10 and others and recorded their statements. He showed M.O.1

to P. Ws.1, 2 and 3 on 3.6.1981 and recorded their further statements. P.W.6 was also questioned and his statement was also recorded. The

material objects were sent to the court with a request to forward them for analysis and the court by sending them obtained Exs.P. 15 and P. 16,

the report of the Chemical Analyst and the report of the Serologist respectively. After completing investigation, the final report was filed against the

accused by P.W. 17, the successor-in-office to P.W. 16, on 13.7.1981.

When questioned u/s 313, Cr.P.C. on the incriminating circumstances appearing against him, the accused denied his complicity and stated that

at about 6.00 p.m. on 1.6.1981 when he was walking in front of the house of the deceased after taking tea, the deceased accosted him and told

him that his activities are not satisfactory, for which he replied by saying that since his wife P.W.4 is not living with him, he has no other alternative

except to have a concubine P.W.7 and that she cannot be sent away. He further stated that he questioned the deceased as to how he could take

his food, without the help of any lady, the deceased got angry, went inside the house, brought an aruval, and attempted to cut him. It is, his further

case that when the deceased attempted to cut him he held him and after a scuffle, snatched the aruval from the deceased and cut him in anger and

later surrendered at Nannilam Police Station. In short, by implication he has pleaded the right of private defence.

The fact the Amirthalinga Pandithar died on account of homicidal violence is not disputed by the defence. The fact also stands proved through

the evidence of the Post-mortem doctor, P.W.6 and the Certificate, Ex.P.3 issued by him. P. Ws.1 to 3 are the eye witnesses. P.W.1 is the

carpenter by profession who was making a bamboo fence in the house of the deceased at the time of the incident and he is an independent witness.

P.W.2 is the brother-in-law of the accused and P.W.3 is a neighbour of the deceased and independent in nature. All the three witnesses have

stated that at about 5.30 p.m. the accused entered the house of the deceased carrying with him an aruval dragged the deceased to the road and

after pushing him down, cut him indiscriminately, as a result of which, Amirthalinga Pandithar died. The fact that the accused cut the deceased is

also not denied by him, when he was questioned u/s 313, Cr.P.C. The evidence of P. Ws. 1 to 3 is also corroborated by the evidence of the post-

mortem doctor. P.W.6. Even to the eye-witnesses, the accused has only suggested that there was a quarrel between the accused and the

deceased and during the said quarrel, the deceased was cut by the accused. Nothing had been elicited from any of the eye-witnesses for us to hold

that they were speaking falsehood. We accept their evidence and hold that the deceased was cut by the accused.

The only question that is left to be decided by us is the nature of the offence committed by the accused. When questioned u/s 313, Cr.P.C. he

had stated that the deceased came out of the house with an aruval and attempted to cut him and that he snatched the aruval from the hands of the

deceased and cut the deceased. A perusal of the statement does not indicate that the accused acted in exercise of the right of private defence. If

the accused takes a particular plea then the onus of proof for availing the benefit of general exception, such as, right to private defence rests on that

person u/s 105 of the Indian Evidence Act since it is for him to prove the existence of circumstances proving the case within any of the exceptions.

and the court shall presume the absence of such circumstance if there are no materials"" as held by the supreme Court in Periasamy and another v.

State of Tamil Nadu (1997 SCC (Cri) 121). When we apply the above principle to the facts of the case, there are no materials to indicate that the

deceased was cut in the exercise of the right of private defence by the accused. In fact all the witnesses have stated in the cross-examination that

when the deceased was cut he was lying on the ground and the accused also has stated when questioned u/s 313, Cr.P.C. that the deceased was

unarmed since the aruval had already been snatched from his hands by the accused. Therefore, we are unable to hold that the accused cut the

deceased in the exercise of the right of private defence. A small injury that was noted by P.W.6 near the left ear of the accused is superficial in

nature and from this, it cannot be inferred that the deceased attempted to cut the accused and the accused in the exercise of his right of private

defence cut him. We are unable to accept the defence case.

In view of the discussion made above, we are of the view that the learned Sessions Judge was justified in convicting and sentencing the

accused. The appeal needs no interference and it is accordingly dismissed.