Rajendran vs The State

V. Bakthavatsalu, J.—The appeal is preferred by sole accused against the conviction and sentence imposed on him by the Additional

Sessions Judge, Vellore in S.C. No. 150 of 1992. The charge against the accused is that on 10.11.1991 at about 6.00 a.m., the accused beat

Jayaraman with a stick on his shoulder and head, as a result of which he died on 18.11.1991 and that therefore he is liable to be punished u/s 302

I.P.C. The accused denied the charge.

The prosecution has examined P.Ws.1 to 16 and marked Exs.P-1 to P.29 and M.Os. 1 and 2. The case of the prosecution as disclosed from

the evidence is as follows: P.Ws.1 and 2 are sons of deceased Jayaraman. P.W.5 is the wife of the accused. On 9.11.1991 at about 6.00 p.m.,

the wife of P.W. 1, namely, Meena requested P.W.2 to fetch water from bore pumpset. Accordingly, P.W.2 went to Othavadai Street and asked

P.W.5 to give one pot of water, but she refused to give water to P.W.2. When P.W.2 insisted P.W.5 to give one pot of water, P.W.5 beat P.W.2

on his cheek. Thereafter P.W.2 returned to the house and informed the incident to P.W. 1.

On 10.11.1991 at about 6.00 a.m. P.W. 1 his father Jayaraman and wife of P.W. 1 namely Meena were proceeding through Othavadai Street.

P.W.2 also accompanied them. At that time the accused was standing in front of the house of one Rani. Accused questioned P.W.1 as to why

P.W.2 quarrelled with his wife, for which P.W.1 told him that P.W.2 was assaulted by the wife of the accused. At that time the deceased

Jayaraman told that his son, namely, P.W.2 was beaten and he questioned the accused as to why he is creating trouble. The accused at that time

told "" "" and then he beat on the left shoulder of the deceased with a velikkathan stick. The accused again beat on the head of the deceased. When

he attempted to assault again, the same was obstructed by the father of P.W.1 and therefore the stick fell on his left hand. Then P.W.1 pushed the

accused. As blood was oozing from the head of the father of P.W. 1, he was taken to the hospital.

P.W.3 the Doctor attached to the Government Hospital, Arakkonam examined Jayaraman at about 9.45 a.m. on 10.11.1991. The Doctor saw

lacerated injury on the right side of the head and contusion on his shoulder. Ex.P.2 is the copy of the accident register. The Doctor also sent

intimation Ex.P-3 to the police. On the same day P.W.3 examined the accused at about 8.35 a.m. The Doctor saw lacerated injury over the left

side of the head and also contusion over the right knee joint and abrasion over the left knee. Ex.P-4 is the copy of the accident register. On the

same day at about 8.50 a.m., P.W.5 was examined by Doctor. The Doctor saw contusion over the left side of neck. Ex.P-5 is the accident

register. The doctor sent another intimation Ex.P-6 to the police. Thereafter, the injured Jayaraman was sent to Government Hospital, Madras.

P.W.4, the doctor attached to Government General Hospital, Madras examined the injured Jayaraman at 7.50 p.m. on 10.11.1991 and has

admitted him in male ward. Ex.P-7 is the copy of the accident register. At that time the patient was unconscious.

P. W. 11, the constable of Arakkonam police station received the intimation Exs.P-3 and P.6 and handed over to P.W.10. P.W.10. the Head

Constable proceeded to the Arakkonam Hospital. As he was informed that the injured was taken to Government Hospital, Madras, he examined

the accused at Arakkonam Hospital and recorded statement Ex.P-14. On 11.11.1191 at about 10.00 a.m. he proceeded to hospital at Madras.

As the injured was unconscious, he did not record any statement. On 12.11.1991 at about 10.30 a.m. he recorded statement from P.W. 1 under

Ex.P-1. Thereafter, he returned to the police station and registered a case in Crime No. 723 of 1991 u/s 325 I.P.C. On the basis of the complaint

given by the accused he registered the case in P.I.R. No. 199 of 1991.

P.W. 15, the Sub Inspector attached to the Arakkonam Police Station took up investigation. At about 4.30 p.m., be inspected the spot in the

presence of P.W.7 and prepared observation mahazar Ex.P-24 and also sketch Ex.P.25. He then proceeded to Madras and examined P.W.1.

Meanwhile P.W.6, the Assistant Neuro Surgeon of Government Hospital, Madras sent intimation on 18.11.1991 stating that the injured

Jayaraman is dead. Ex.P.-8 is the death intimation sent by P.W.6. On receiving the death intimation P.W. 15 altered the case into Section 302,

I.P.C. and prepared express report Ex.P.26.

P.W. 16, the Inspector took up further investigation and he proceeded to the Government Hospital, Madras and conducted inquest in the

presence of witnesses on 19.11.1991. Ex.P-27 is the inquest report. Thereafter, he sent the body for postmortem. Ex.P.17 is the requisition letter

addressed to the Doctor.

P.W.14, the Doctor attached to Madras Medical College after receiving Ex.P-17 conducted postmortem at about 2.30 p.m. on 19.11.1991.

During the course of postmortem, the Doctor saw the following injuries:

(1) Swelling over the left scapular region below the medial two-third of left scapular spine seen. On dissection Blackish brown contusion of the soft

tissues covering over the left scapula present over an area of 7 x 7 cms muscle deep. On further dissection, A vertical fissured fracture over the

body of left scapula present 1 cm. left lateral to medial border of the scapula. The upper end of the fracture lies close to medial third to left

scapular spine, lower end lies 2 cms. above the inferior angle of left scapula. The length measures 7 cms. in length.

(2) A sutured wound present over the upper part of right parietal region close to the inter parietal suture anteroposteriorly placed which lies 14

cms. above the upper most part of the right ear pinna. The wound measures 7 cms. in length in which 7 sutures are intact while colour-sutured

thread present and the wound margins are oedematous; raised whitish scab covering it. On removal of the sutures - the wound margins are

approximated and adherent with each other. Suture margins are present at its margins on both sides.

(3) A horse shoe shaped sutured surgical would present over the right lateral aspect of the scalp. The lower anterior end of the wound lies 3 cms.

in front of upper part of right ear pinna and the lower posterior end of the wound lies 4 cms. behind the upper part of right ear pinna. The upper

most curvature of the wound lies 12 cms. above the right ear pinna. The entire length of the wound measures 32 cms. in which 43 black colour

sutures are intact. On removal of the sutures the wound margins are slightly adherent with each other. On further dissection; Horse shoe shaped

muscle cutaneous flap easily separated from its bony attachment. The dura covering over the right remporoparietal region is visible. The margins

are found sutured on uppermost part. On further dissection; Gel foam covering over the fronto-temporo-parietal region of the brain over an area of

8 x 11 cms. Deficit of fronto-temporo-parietal is present over an area of burr-holes present at its margins. Margins of burr-holes are sharp in

certain areas. On further examination Superficial contusion present over the inferolateral surface of right temporal lobe over an area of 3 x 5 cms.

Another superficial contusion over the inferolateral surface of left temporal lobe over an area of 2 x 1 cms. dark red in colour with thick 3 mm.

thick clotted blood covering over it dark blackish red in colour. On dissection of the brain; Infra cerebral hemorrhagic clots within the substance of

right hemisphere (Posterior part of right lateral ventricle) present. On further examination of the base of the skull, An oblique transverse linear

fissured fracture present at the base of right middle cranial fossa 2 cms. in front of right patrous part of temporal bone measuring 4 cms. in length.

On examination of cerebral vessels and grant vessels no pathological changes or lesions seen - Nil abnormal.

HEART: All chambers contained fluid and clotted blood. Both coronaries patent.

LUNGS: Both lungs plaura intact. Congested and oedematous.

STOMACH: Empty. No definite smell. Mucosapale.

BLADDER: Empty, Hyoid Bone intact. All other internal organs were found in abnormal.

OPINION: Died of Head injuries. Ex.P-23 is the post mortem certificate issued by P.W.14.

After postmortem, P.W. 12, the constable handed over the body to the relations and at that time he recovered M.O.2 from the body under Ex.P-

18.

P.W.16, the Inspector, on 20.11.1991 arrested the accused in the presence of P.W.8 and P.W.9 and confession statement given by the

accused was recorded by P.W. 16. In pursuance of the above statement Ex.P.-28, the accused produced M.O.1., the stick from pump-set room

and the same was seized under mahazar Ex.P-29 in the presence of P.W.8 and P.W.9. The Inspector also sent material objects to the court for

obtaining report of Chemical Examiner.

P.W. 13, the Head Clerk of Judicial Magistrate No. 2, Court, Arakkonam sent the material objects to the Chemical Examiner and he received

reports Exs.P-21 and P-22. P.W. 16 after examining the Doctor and other witnesses, completed investigation and filed charge sheet on 6.4.1992

u/s 302 I.P.C.

The incriminating materials appearing against the accused were explained to him u/s 313 of Code of Criminal Procedure. The accused denied

the evidence. During 313 Code of Criminal Procedure examination the accused has stated that he was informed by his wife that P.W.1 and

Jayaraman were rushing to his house with stick and therefore he went into the house of his sister Rani and that the husband of Rani, namely, Rosi,

prevented P.W. 1 and Jayaraman and that P.W. 1 and Jayaraman beat him on his head and that at that time Rosi snatched the stick from

Jayaraman and beat him with the same stick and that he took treatment in the hospital for about one week. No evidence was let in by the accused.

On consideration of oral and documentary evidence the trial court has held that offence u/s 302 I.P.C. is not made out and that the accused is

guilty of offence u/s 304(1) I.P.C. and accordingly he was sentenced to undergo rigorous imprisonment for five years and pay fine of Rs. 1,000/-.

Aggrieved by the said conviction and sentence, this appeal is preferred by the accused.

Learned Counsel for the Appellant Mr. V. Vibhishanan contended that the trial court has not properly considered the vital discrepancies in the

evidence and that the inordinate delay in lodging F.I.R. and despatching the same to the court were not properly considered by the trial court and

that even though the accused was admitted in hospital before Jayaraman was taken to the hospital, the case of the accused was not properly

investigated by police and that the findings of the trial court that the accused exceeded the right of private defence, is not sustainable in law and that

even the admitted materials will clearly show that the accused would not have committed any offence as alleged by the prosecution.

The learned Government Advocate relying upon the evidence of eye witnesses P.Ws. 1 and 2 contended that the accused assaulted

Jayaraman, as a result of which he died in hospital and that the accused has been rightly convicted u/s 304(1) I.P.C.

The point for determination is, whether the prosecution has established that the accused is guilty of the offence u/s 304(1) I.P.C.

The deceased Jayaraman is the father of P.Ws. 1 and 2. It is seen that Jayaraman sustained injury on 10.11.1991 and that he died on

18.11.1991. It is also admitted that the accused sustained injury and that both the deceased and the accused were treated by the same Doctor

P.W.3. The evidence of P.Ws. 1, 2 and 5 will show that there was no dispute between the parties except a petty quarrel that occurred over taking

water. Therefore, it can be safely held that there is no motive to the accused to assault Jayaraman. On careful perusal of the judgment of the trial

court, it is seen that the trial court has also accepted the defence version to some extent. It is also seen that findings of the trial court are mutually

inconsistent on several aspects of the case. But, the trial court has held that the father of P.W. 1 Jayaraman was assaulted by the accused and that

he has exceeded the right of private defence. The trial court has not properly considered the fact that the accused also sustained injury in the same

transaction. Even though P.Ws.1 and 2 have uniformly stated that the accused beat Jayaraman with velikkathan stick, they have not clearly stated

as to how the accused sustained injury. P.W.1 has stated that he pushed down the accused after his father was assaulted. P.W.2 has also stated

that P.W.1 pushed down the accused and that the accused fell on the ground. In Ex.P-1, the complaint given by the accused, it is not stated as to

how the accused sustained injury on his head. P.W.5, the wife of accused has stated that P.W.2 picked up quarrel with her for drawing the tap

water and that P.W.2 also kicked the pot and that he also beat her and that she also beat P.W.2 and that on the next day P.W. 1 and Jayaraman

chased her husband i.e. the accused and that before P.W.5 reached the house of Rani, she found both the accused and Jayaraman with bleeding

injury. It is clear from the evidence of P.W.5 that her husband i.e., the accused also sustained injury. The trial court while adverting to the above

aspect of the case, has clearly held that head injury sustained by the accused could not have been caused by falling on the rough surface. The trial

court has also rejected the case of the prosecution that the accused sustained injury when he fell on the rough surface. The trial court has also held

that the injury sustained by the accused is not superficial injury and that therefore the prosecution was under the obligation to explain the injuries

found on the accused.

It is significant to note that the trial court has also given a finding that the accused was not aggressor. In para 23 of the judgment, the trial court

has held that the prosecution has suppressed the genesis of the occurrence. It is thus clear from the findings of the trial court that the prosecution

has failed to explain the injuries found on the accused. The prosecution has suppressed the genesis of the occurrence. But the trial court has

curiously held that the portion of evidence of P.Ws. 1 and 2 that the accused assaulted Jayaraman has to be separated from the rest of the

evidence. I fail to understand the reason assigned by the trial court on this aspect of the case, when the prosecution failed to explain the injuries

found on the accused and when the prosecution has suppressed the material fact, great care and caution is required in assessing the evidence of

P.Ws.1 and 2. From the findings of the trial court, it is clearly established that the accused sustained head injury in the same transaction and that the

said injury has not been explained by the prosecution.

The answer to the question as to how the incident commenced has to be gathered from the evidence of P.Ws.1, 2 and 5. P.Ws.1 and 2 have

stated that when they were proceeding through Othavadai Street, verbal altercation arose between them and at that time the accused beat

Jayaraman with a stick. Ex.P-25 is the sketch. It would show that the occurrence took place in front of Door No. 7. The version put forward by

the accused in 313 Code of Criminal Procedure examination will show that the occurrence took place inside the house of his sister Rani. The

accused has stated that he was beaten by P.W.1 and Jayaraman on his head and that at that time Rosi beat Jayaraman with a stick. The above

version put forward by the accused was not accepted by the trial court. But the trial court in para 28 of the judgment has accepted the case of the

accused to some extent. The trial court has observed that P.W. 1 and Jayaraman chased the accused and that they caused injuries on his head and

that apprehending danger to his body, the accused would have exercised the right of private defence. As already stated, the evidence adduced by

prosecution that the accused was aggressor was not accepted by the trial court. It is, thus, clear that the trial court accepted the defence version

that the accused was chased by P.W.1 and deceased. In this context, the evidence of P.W.5 would play important role in this case. P.W.5 has

clearly stated that the accused was chased by P.W.1 and deceased and that both accused and Jayaraman were found with injuries. When once the

trial court has come to a conclusion that the accused sustained injuries at the hands of the deceased, and that the prosecution suppressed the

genesis of the occurrence, the trial court ought to have acquitted the accused giving benefit of doubt. On the other hand, the trial court proceeded

to discuss the evidence to fix liability on the accused u/s 304(1) I.P.C. I am unable to subscribe to the view taken by the trial court.

The trial court has not properly considered the delay in lodging F.I.R. It is seen that the injured was taken to Arakkonam hospital and that

thereafter he was taken to Madras for further treatment. P.W.3 the doctor has stated that the injured Jayaraman told him that he was assaulted by

four known persons. Therefore, it is clear that the injured was conscious at that time when he was admitted in Arakkonam hospital. The distance

between the hospital and the police station is about two kilo metre. Even on that day no complaint was lodged in the police station. It is significant

to note that P.W.10 who proceeded to Government hospital, Madras on 11.11.1991 did not record statement from P.W.1. Even assuming that

the injured Jayaraman was unconscious at that time, nothing prevented P.W.10 from recording statement from P.W.1. He has stated that he

recorded statement from P.W.1 only on 12.11.1991 at 10.30 a.m. It is significant to note that the accused was admitted in the Arakkonam

Government Hospital even before Jayaraman was admitted in the same hospital and a statement given by the accused was registered on the same

day in the police station. It is further seen that Ex.P-1 and all the documents reached the court only on 19.11.1991. Therefore, it is contended on

behalf of the accused that only after death of Jayaraman, the F.I.R. could have been prepared after due deliberation. If really the complaint was

lodged on 12.11.1991 u/s 325 I.P.C., which is cognizable offence, it would have reached the court on the same day. No valid reasons are

assigned as to why the earliest report, express report, F.I.R. and all other documents reached the court only on 19.11.1991 after the death of

Jayaraman. The above circumstances ought to have been taken into consideration by the trial court while assessing the evidence of P.Ws.1 and 2.

That apart, there is also another discrepancy with regard to the manner of assault. It is in the evidence of P.Ws.1 and 2 that only accused

assaulted Jayaraman. But before doctor, P.W.3 the injured Jayaraman has stated that he was assaulted by four known persons. P.W.3 has stated

that the said fact was revealed to him only by Jayaraman. The earliest information given by the injured, Jayaraman to doctor will show that the

injured would have been involved in some other incident and in the said incident, he would have sustained injuries. Relying upon the above facts, it

is contended by the learned Counsel for the accused that as the deceased was not assaulted by the accused, the complaint was not lodged by

P.W.1 at the earliest possible time. If the evidence of P.Ws.1 and 2 is considered along with the above circumstances, it would raise considerable

doubt on the genuineness of Ex.P-1. As P.Ws.1 and 2 did not explain as to how the accused sustained injury, it is extremely unsafe to base any

conclusion on the evidence of P.Ws. 1 and 2. As the trial court itself has held that the accused was not aggressor, it is doubtful whether the

occurrence could have taken place in the manner and time alleged by P.W. 1.

The trial court has found the accused guilty u/s 304(1) I.P.C. without any materials and the findings of the trial court on this aspect is

inconsistent. In para 28 of the judgment, the trial court has held that the accused was chased by P.W.1 and Jayaraman and that after the accused

was assaulted by them, the accused apprehending danger to his body would have exercised the right of private defence. The trial court has also

observed that the accused cannot be expected to run like a coward when he was attacked by other persons.

Then in para 29 of the judgment, the trial court has given another inconsistent finding. The trial court has held that the accused would not have

apprehended that injury or death would be caused to him and that P.W.I and the deceased were not carrying any deadly weapons and that

therefore the accused exceeded the right of private defence. When once the trial court has held in the earlier portion of the judgment that the

accused was not an aggressor and that the accused apprehended danger to his life, it is not open to the trial court to give another finding in the

same judgment. Therefore, the findings of the trial court that the accused did not apprehend any injury or death and that he exceeded the right of

private defence cannot be sustained.

The trial court has found that the accused was chased by P.W.1 and Jayaraman and that the accused sustained injury on his head. The

prosecution failed to explain as to how the accused sustained the above injury. When the accused was chased by P.W.1 and the deceased, the

accused is not expected to run like a coward. The weapon used in the occurrence is only a small stick. Hence, it cannot be said that the accused

exceeded the right of private defence. When the accused was chased by P.W.1 and the injured, the accused would have apprehended danger to

his life. In the above circumstances, one cannot expect the accused to weigh in golden scales as to which kind of injury he should inflict on his

adversary. The trial court having accepted the defence version that he sustained injury on his head and that the prosecution suppressed the genesis

of the occurrence. It is not open to the trial court to give a finding that the accused exceeded the right of private defence.

The trial court has held that the accused assaulted the deceased with the knowledge that his act is likely to cause death. As already stated, the

injured Jayaraman died while he was taking treatment in the hospital. Hence, it cannot be said that the accused while-attacking his adversary with a

stick had knowledge that he is likely to cause his death. As the trial court has given a finding that the accused exceeded the right of private defence,

it cannot be said that the accused had knowledge that his act will likely to cause death. The findings of the trial court on this aspect are mutually

inconsistent. When a person attacked another with a small stick in exercise of the right of private defence, the question whether the accused had

knowledge that his act is likely to cause death or not is immaterial. It is not shown that the accused has caused more harm than necessary in the

circumstances of the case. As already stated, any person in the position of the accused when he was chased would only retaliate by throwing stone

or beat with the stick. In any event, the above act of the accused cannot be said to be an act falling under ""exceeding the right of private defence"".

In the above circumstances, the findings of the trial court that the accused exceeded the right of the private defence cannot be sustained.

It is thus seen that the prosecution failed to prove that the accused is guilty of offence u/s 304(1) I.P.C. The findings of the trial court that the

accused exceeded the right of private defence are not supported by any materials. Therefore, I hold that the conviction and sentence imposed on

the accused have to be set aside.

In the result, this criminal appeal is allowed. The conviction and sentence imposed on the accused are set aside. The accused is ordered to be

released forthwith unless his presence is required in any other case. The bail bond shall stand cancelled. The fine amount paid by the accused shall

be refunded to him.