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AYYAR THEVAR versus STATE THROUGH INSPECTOR OF POLICE

High Court of Madras

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Ayyar Thevar v. State through Inspector of Police - Criminal Appeal No.4 of 1999 [2007] RD-TN 224 (20 January 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 20/01/2007

CORAM:

THE HONOURABLE MR.JUSTICE D.MURUGESAN

AND

THE HONOURABLE MR.JUSTICE G.RAJASURIA

Criminal Appeal No.4 of 1999

1. Ayyar Thevar

2. Deivendran

3. Muthiah alias mUrugan

4. Mahendran

5. Raja

6. Amsu

7. M.Murugan

8. Manoharan

9. Prabhaharan

10. Chellakkamu

11. Kuttapallan alias Karuppa Thevar

..Appellants

State through Inspector of Police

Chinnamanur Police Station

Crime No.480/92

Theni/Madurai District.

..Respondent

Prayer

The Criminal Appeal is filed under Section 374(2) of Cr.P.C. against the Judgement and order of conviction passed by the learned II Additional Sessions Judge, Madurai in S.C.No.281 of 1994 dated 21.12.1998. For Appellants : Mr.N.Natarajan &

Mr.R.Shanmugasundaram, SC for Mr.K.S.Ramachandran For Respondent : Mr.P.N.Pandidurai, APP :JUDGMENT



G.RAJASURIA,J.

The Criminal appeal is directed against the Judgment of convictions recorded and the sentences passed as against the appellants by the learned II Additional Sessions Judge, Madurai in S.C.No.281 of 1994 dated 21.12.1998.

2. Broadly but briefly, the case of the prosecution as stood exposited from the records could be portrayed thus:-

(i) One Pichaithevar was cultivating the land bearing Survey No.1218 measuring an extent of 1.5 acre to the North of the channel, where as A1 (the first appellant herein who is now dead) was owning land in Survey No.121/1, measuring an extent of 1 acre to the South of the said channel. There were disputes between them regarding to sharing of the water from the channel. They are riparian owners of the lands situated on either side of the channel and the lands are irrigated by drawing water from the channel. The said dispute between them paved the way for brewing enmity between them for a considerable time. Whileso, A1 took exception to the said Pichai for putting up a 'Muttu'(a kind of barrier) in the said channel, so as to make the water to raise and flow into the land of Pichai for irrigating his land. Pichai's land was higher in level than that of said channel, which is also called Kanmai. It so happened that on 29.11.1992, there was a Panchayat held in the village relating to such putting up of "Muttu" and in that Panchayat Ayyar Thevar-A1 agreed for Pichai to put up the Muttu so as to irrigate his said land. Consequent upon such understanding, Pichai and his son had put up the Muttu, but A1 demolished it on the same day evening. Thereupon, on 30.11.1992 at about 9.00 a.m. Pichai and his sons viz., Mohan, Mahendran and his relative's son Chinnasamy and Thalamuthu, S/o.Chinnathevar started putting up the Muttu. Thereupon A1 and A9 armed with deadly weapons such as Bitchuva knife, pipes and sticks came to the said place where the Muttu was there. A2-Deivendran attacked the deceased Thalamutthu with Bitchuva knife by stabbing twice one at the centre of his chest and another at the left side of his chest and thereupon, the deceased Thalamuthu fell down. Even thereafter, A4 and A5 attacked him on his left hand and on his left thigh. A5 with iron rod attacked Thalamuthu on his forehead. The accused party also attacked Pichai and his men, who in turn by way of private defence attacked the accused party with stumps. The deceased Thalamuthu who sustained such fatal injuries was taken by his father Chinnathevar in a van to Uthamapalayam Hospital, where the Doctor declared him dead. Thereupon, he lodged the complaint with the Police at Chinnamanur Police Station, who registered the case in Crime No.480/1992 under Sections 147, 148, 325, 324 and 302 IPC.

(ii) On the prosecution side Pichai, Chinnasamy, and Mohan sustained injuries and they took treatment at the Chinnamanur N.K.P. Thevar Government Hospital. The Police conducted inquest over the dead body of the Thalamuthu and sent the body for post mortem. It so happened that, A1 Iyyathevar relating to the same incident lodged a complaint with the same Police who registered the case in Crime No.481/92 under Sections 147, 148, 325, 324 and 302 IPC as against the said Pichai and his sons Mahendran, Mohan, the deceased Thalamuthu, Perumal, Mayee, Chinnasamy and 30 unknown persons. In this case which is under Crime No. 481/92 A1 to A7 sustained injuries. The Police after invetigation, dropped action in Crime No.481/92, and referred the matter as mistake of fact to the Magistrate Court concerned, whereas the Police filed the Police report implicating Ayyar Thevar and 10 others as accused before the Magistrate Court concerned, who took it on file and committed the case to the Court of Session. The Sessions Court framed charges as follows:-

"I Charge A1 to A11 148 I.P.C.

II Charge A1 and A11 324 & 326 IPC respectively III Charge A2 to A10 324 & 326 r/w 149 IPC IV Charge A2, A4 and A5 302 r/w 34 IPC

V Charge A1,A3&A6 toA11 302 r/w 149 IPC

VI Charge A2, A4 & A7 323 & 324 IPC

VII Charge A1, A3, A5,

A6 & A8 to A11 324 r/w 149 IPC VIII Charge A4 and A10 324 & 323 IPC respectively IX Charge A1 to A3,A5 to

9 and A11 324 r/w 149 IPC X Charge A1 to A3, A5, A7

A10 and A11 324 r/w 149 IPC XI Charge A1 to A3, A5,

A7, A10 and A11 324 r/w 149 IPC (iii) On the side of the prosecution P.Ws.1 to 20 were examined and Exs.P1 to P30 were marked along with M.O's 1 to 18. On defence side Ex.D1 was marked. (iv) Ultimately, the trial Court convicted the accused persons under various offences as under:-

Accused Nos.

Conviction under Sections

Sentences to undergo

A.1

148 I.P.C

2 years R.I

326 I.P.C

3 years R.I with Fine of Rs.500/- in default to undergo six months R.I 326 r/w 149 I.P.C

3 years R.I with fine of Rs.500/- in default to undergo 6 months R.I. 324 r/w 149 I.P.C (8 counts)

2 years R.I for each counts.

323 r/w 149 I.P.C(4 counts)

One year R.I for each counts.

A.2

148 I.P.C

2 years R.I

302 I.P.C

Life imprisonment with fine of Rs.1,000/- in default to undergo one year R.I 326 r/w 149 I.P.C

3 years R.I with fine of Rs.500/- in default to undergo six months R.I 324 I.P.C

2 years R.I

324 r/w 149 I.P.C

(7 counts)

2 years R.I for each counts

323 r/w 149 I.P.C

(4 counts)

One year R.I for each counts.

A.3

148 I.P.C

2 years R.I

326 r/w 149 I.P.C. (2 counts)

3 years R.I for each counts with fine of Rs. 500/- in default to undergo six months R.I.

324 r/w 149 I.P.C. (8 counts)

2 years R.I for each counts

323 r/w 149 I.P.C (4 counts)

One year R.I for each counts.

A.4

148 I.P.C

2 years R.I

326 r/w 149 I.P.C

(2 counts)

2 years R.I for each counts with fine of Rs.500/- in default to undergo six months R.I.

324 I.P.C (4 counts)

2 years R.I for each counts.

324 r/w 149 I.P.C

(4 counts)

2 years R.I for each counts

323 r/w 149 I.P.C.

(4 counts)

One year R.I for each counts.

A.5

148 I.P.C.

2 years R.I

326 r/w 149 I.P.C

(2 counts)

3 years R.I for each counts with fine of Rs.500/- in default to undergo six months R.I.

324 I.P.C.

2 years R.I.

324 r/w 149 I.P.C

(7 counts)

2 years R.I for each counts.

323 r/w 149 I.P.C

(4 counts)

One year R.I for each counts.

A.6

148 I.P.C.

2 years R.I.

326 r/w 149 I.P.C

(2 counts)

3 years R.I for each counts with fine of Rs.500/- in default to undergo six months R.I.

324 I.P.C.

2 years R.I.

324 r/w 149 I.P.C

(7 counts)

2 years R.I for each counts.

323 r/w 149 I.P.C

(4 counts)

One year R.I for each counts.

A.7

147 I.P.C

One year R.I

326 r/w 149 I.P.C

(2 counts)

3 years R.I for each counts with fine of Rs.500/- in default to undergo six months R.I.

324 r/w 149 I.P.C

(8 counts)

2 years R.I for each counts.

323 I.P.C

One year R.I.

323 r/w 149 I.P.C

(3 counts)

One year R.I for each counts.

A.8

147 I.P.C.

One year R.I

326 r/w 149 I.P.C

(2 counts)

3 years R.I for each counts with fine of Rs.500/- in default to undergo six months R.I.

324 r/w 149 I.P.C

(8 counts)

2 years R.I for each counts.

323 I.P.C

One year R.I

323 r/w 149 I.P.C

(3 counts)

One year R.I for each counts.

A.9

147 I.P.C

One year R.I

326 r/w 149 I.P.C

(2 counts)

3 years R.I for each counts with fine of Rs.500/- in default to undergo six months R.I.

324 r/w 149 I.P.C

(8 counts)

2 years R.I for each counts.

323 I.P.C.

One year R.I

323 r/w 149 I.P.C

(3 counts)

One year R.I for each counts.

A.10

147 I.P.C.

One year R.I

326 r/w 149 I.P.C

(2 counts)

3 years R.I for each counts with fine of Rs.500/- in default to undergo six months.

324 r/w 149 I.P.C

(8 counts)

2 years R.I for each counts.

323 I.P.C.

One year R.I

323 r/w 149 I.P.C

(3 counts)

One year R.I for each counts.

A.11

148 I.P.C.

2 years R.I

326 r/w 149 I.P.C

(2 counts)

3 years R.I for each counts with fine of Rs.500/- in default to undergo six months R.I.

324 I.P.C.

2 years R.I.

324 r/w 149 I.P.C

(7 counts)

2 years R.I for each counts.

323 r/w 149 I.P.C

(4 counts)

One year R.I for each counts.

3. Being aggrieved by the said convictions recorded and and sentence imposed as against all the 11 accused, this appeal has been filed on the following grounds among others:-

(i) The trial Court committed error in holding the appellants/accused guilty without appreciating the oral and documentary evidence properly. (ii) The motive for the crime has not been proved. (iii) In the absence of independent witnesses, the trial Court ought to have acquitted the accused.

(iv) The trial Court failed to note that the prosecution failed to prove the occurrence in the manner alleged in the Police report. (v) Concerning the weapons used by the accused, there is no consistency in the evidence.

(vi) The trial court ought to have rejected the evidence of eye witnesses as untrustworthy, as there was no evidence to prove as to what were the weapons used and in what sequence the occurrence took place. (vii) The prosecution developed its case from stage to stage. The evidence of P.Ws.1,2,3,4, 13 and 15 cannot be relied on since they have given different versions at two different stages.

(viii) The prosecution theory for the injuries on the accused as though they were inflicted with spade in self defence, could not be possible or probable.

(ix) There was no cogency in the evidence on the prosecution side as to who attacked him and with what weapon.

(x) The trial Court ought to have held that the injured witnesses on the prosecution side were the aggressors and the accused, acted only in self defence.

(xi) The Investigating Officer-P.W.20 did not follow the procedure for investigating case and counter case.

(xii) The statements of witnesses were fabricated and sent to Court with considerable delay.

4. Accordingly, the appellants prayed for setting aside the Judgement of the trial Court and for acquitting them.

5. The points for consideration are:- (1) Whether the motive part of the crime was proved by the prosecution or not?

(2) Whether Pichai and his men on the oneside and the 11 accused on the other side are the aggressors?

(3) Whether the prosecution failed to explain the injuries sustained by the accused?

(4) Whether A2 murdered the deceased, as held by the trial Court? (5) To what extent the right of private defence is applicable in this case?

(6) Whether the convictions recorded and the sentences imposed by the trial Court on the accused for the various offences, are tenable?

6. Point Nos.(1) to (6) are taken together for discussion in view of the reason that they are inter-linked and interwoven with one another. Points 1 to 6:-

7. It is a trait proposition of law, that in case of this nature motive plays a vital, even though it might generally be stated that proving motive is not Sine quo non for driving home the guilt of the accused.

8. Right at the out set, we may refer to the arguments advanced by the learned Senior Counsel for the appellants that the prosecution was not specific as to whether the dispute relating to sharing of the channel water or demarcation of the land is the motive for the commission of the crime and that the genesis of the crime as put forth by the prosecution is in doll drums.

9. No doubt, in Ex.P1, the complaint which was lodged by P.W.1- Chinnathevar, the father of the deceased Thalamuthu, the land dispute was not referred to as one of the motives for the commission of the crime in clear and categorical terms. It is found set out that sharing of the channel water was the predominating factor which constituted the bedrock of the dispute and which ultimately paved the way for the commission of the crime by the accused. An excerpt from the complaint Ex.P1 would run thus"- "vq;f Ch; Vl;L vd;w tPuzj; njth; kfd; gpr;ir vd;Dila kr;rpdd;. mtUf;Fk; vq;f Ch; xr;rhj;njth; kfd; fzj;j kz;il vd;w ma;ah; njtUf;Fk; fz;zhw;wpy; jz;zPh; vLg;gJ rk;ge;jkhf fle;j MW khr fhykhf gpur;rpid; ,Ue;J te;jJ. ,J rk;ge;jkhf vq;f Ch; rpd;dhj; njth; kfd; bgUkhs;> Fg;ghz;oj; njth; kfd; kfuhrd;> khahz;oj; njth; kfd; K:f;fd; ,th;fs; 29.11.1992 k; njjp Qhap;w;Wf; fpHik ma;ah; njthplk; brd;W gQ;rhaj;J ngrpajpy; gpr;ir jd; taYf;F Kl;Lj; njf;fp jz;zPh; vLf;f xg;g[f; bfhz;lhh;. ,jd; nghpy; new;W rhaa;fhyk; gpr;ira[k; mth; Ml;fSk; CUf;F fpHf;nf ,Uf;Fk; mt[q;f taYf;F Kl;Lj; njf;fp jz;zPh; tpl;lhh;fs;. Mdhy; md;idf;F rhaq;fhynk ma;ah; njth; Kl;Lj; njf;fpaij btl;o tpl;lhh;fs;. ,J rk;ge;jkhf ,d;idf;F 30.11.1992 k; njjp gQ;rhaj;Jf;fhuh;fsplk; brhy;yp tpl;L gpr;ir mth; kfd;fs; knfe;jpud;> nkhfd;> cwt[f;fhug; igad; bgUkhs; njth; kfd; rpd;dr;rhkp> vd; kfd; jhsKj;J vy;nyhUk; ngha; ma;ah; njth; mHpj;j Kl;il kPz;Lk; vLj;Jf; fl;odhh;fs;. mg;nghJ ehd; Ch; bghpath;fs; rpddhj; njth; kfd; bgUkhs;> Fg;ghz;o njth; kfd; kfuhrd;> rpd;dhj; njth; kfd; bgUkhs;> Fg;ghz;o njth; kfd; kfuhrd;> rpd;dkDhh; bghpa fUg;gj;njth; kfd; jtrp vy;nyhUk; mUfpy; ;,Ue;njhk;."

10. However, P.W.1 while deposing before the trial Court even during Chief Examination reiterated what was set out as motive for the commission of the crime by the accused in Ex.P1 and further proceeded to detail that on 29.11.1992, so to say, the day prior to the date of occurrence, during the Panchayat held relating to water dispute, it was decided at that time that after harvest, the land dispute could be settled. An excerpt from P.W.1's deposition would run thus:-

"29.11.1992 k; njjp Kl;Lfl;o gpr;ir mtuJ taYf;F jz;zPh; vLj;Jf; bfhs;tbjd;Wk;> mWtil Koe;j gpd;g[ ngrp mse;JvLj;Jf; bfhs;syhk; vd;W Kot[ vLf;fg;gl;lJ. mjw;F ma;ah;njtUk; xj;Jf; bfhz;lhh;."

11. At this juncture, the learned senior counsel appearing for the appellants/accused by referring to the deposition of P.W.15-Maharajan who claims to be one of the Panchayators, argued that P.W.15 denied any land dispute. Simply because P.W.15 did not refer to any such land dispute as referred to by P.W.1, the Court cannot jump to the conclusion that the water dispute as putforth by the prosecution as the motive for the crime, should be discarded. P.W.5, the Village Administrative Officer would detail the facts relating to the water dispute and it is therefore just and necessary to go deep into his evidence.

12. P.W.1 in his deposition highlighted that in Margeyankottai Village one Rajaraman was owning the land bearing Survey No.1218 to an extent of 1.5 acre of land and from him, Veeranathevar took it on lease and cultivating it and following him P.W.2-Pichai was cultivating the land at the relevant time of the occurrence; the channel was running from West to East starting from the main channel which itself was running from South to North direction; the Survey No.121/1 measuring an extent of 1 acre land belonged to Iyyarthevar; there was also one other channel running similarly from the main channel, from West to East to the South of A1's land. From that Channel A1's land was being irrigated; whenever the land of an individual is slightly higher in level, so as to facilitate the channel water to flow into the land, temporary 'Muttu' is being laid, so that the water level would raise and enter into the land concerned; P.W.2's land was also slightly higher which necessitated P.W.2 to put up the Muttu and accordingly he was irrigating his land, for which A1 took strong exception to it and that alone culminated in the occurrence on 30.11.1992. As such, the deposition of the Village Administrative Officer, clearly and categorically gave a picture about the dispute in concinnity with Ex.P27, the sketch drawn by Police elucidating and indicating the channels and the methodology adopted by the villagers in taking water to their lands. Even though the land may be at a higher level, they used to take water by temporarily putting up 'Mutt'. During cross examination of P.W.5, it was suggested to him by the defence side that P.W.2 severed a part of A1's bund for which P.W.5 pleaded ignorance. As such, the tenor of the cross examination of the defence during trial was that there was no dispute over the sharing of the water from the channel concerned which is situated in between the land of P.W.2 and A1, but it was only a land dispute as P.W.2 severed a portion of A1's ridge bund. It is a well settled proposition of law that the accused need not prove his plea and it is enough, if mere probabilities of the defence are high lighted. In this case, A1's land is not at all situated adjacent to P.W.2's land but there is a channel separating the two lands. It is not known as to when and how P.W.2 went to the extent of cutting the ridge of A1 which situated to the South of the Channel, whereas the land of P.W.2 is situated to the North of the channel. In the sketch-Ex.27, the 'Muttu' is found laid by P.W.2 in a slanting manner blocking the water flowing from West to East. Since the accused has come forward with a clear case that there was land dispute and that P.W.1 also in his deposition stated that after the harvest, the land dispute could be settled and accordingly taken, additional suggestions could have been put at least by the prosecution by way of re-examination to clarify as to what was the land dispute. From P.W.1's version what we could understand is that true Panchayat was held on 29.11.1992 and while they were discussing about the water dispute, some dispute relating to the ridge of A1 also was discussed. Whileso, it is not known as to how the appellants could put forth the theory that there was no motive at all for the commission of crime. Even as per the contention of the appellants, P.W.1 stated that there was water dispute as well as land dispute. Simply because in the First Information Report there was no reference to the land dispute also along with the water dispute, the Court cannot arrive at the conclusion that there was no motive at all for the crime.

13. In fact, the argument of the learned senior counsel for the appellants was advanced on the line that the prosecution had not come forward with the real motive for crime and in such a case the benefit of doubt ought to have been given by the Court in favour of the accused. If it is turned out that water dispute was not at all existed between P.W.2 and A1 then the defence theory could be accepted. But here it is Crystal clear that there was a serious water dispute between P.W.2 and A1 and it is spoken to by P.W.1 and P.W.15 and their deposition were well fortified by the evidence of P.W.5, the Village Administrative Officer who is a trustworthy witness so far as the case is concerned as he had no axe to grind in the matter and his position was not in jeopardy in any way in this case.

14. P.W.1 in Ex.P1 as well as in his deposition, would narrate as to how immediately before the commission of the crime, the long standing dispute between P.W.2 and A1 came to an end on 29.11.1992. P.W.2 was unable to irrigate his land which had gone dry due to want of water, P.Ws.1,2,3,4,13 & 15 would all depose about the Panchayat held on 29.11.1992 relating to water dispute. In fact, P.W.13 also during cross examination stated that the land dispute was not the focus of all the discussion, but it was only the water dispute which was the center of discussion. Even though he also like P.W.1 stated that it was also decided at that time that after harvest, the land could be measured and taken if there is any land dispute. There is no dispute that the said channel belongs to Government. Those witnesses would assert that A1 during such Panchayat held on 29.11.1992 agreed for P.W.2 to put up 'Muttu' for irrigating his land; and that however, on the same day when P.W.2 put up the Muttu in the channel for irrigating his land, A1 demolished it. Thereupon, on 30.11.1992 on the instruction of Panchayators, including P.W.15, when P.W.2 and his people were at the channel near the Muttu in connection with putting up of 'Muttu' A1 along with other accused swooped into that place came armed with weapons and staged the attack.

15. The learned Senior Counsel appearing for the appellants would advance the argument that the witnesses P.Ws.1 to 4, 13 and 15 are all admittedly related to one another and their evidence should be discarded. In this context, it is just and necessary to cite the decision of the Honourable Apex Court in Kartik Malhar v. State of Bihar reported in (1996) 1 Supreme Court Caes 614, would run thus:

"18. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p.366, para 25)

"25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan' (AIR at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."

In this case, this Court further observed as under:

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

16. It is therefore crystal clear from the aforesaid decision of the Hon'ble Apex Court that in criminal cases merely because the witnesses are related to the deceased, their evidence should not be discarded on that ground. In such view of the matter, the motive part of the crime as spoken to by P.Ws.1 to 4, 13 and 15 and that too in the wake of the deposition of P.W.5-V.A.O., which buttresses and fortifies the case of the prosecution relating to motive cannot be discarded as interested ones. Had really those witnesses wanted to say that the land dispute was the predominating factor for constituting the motive, they would have very well stated like that but they had not stated so as that was not the real vital dispute. It is nobody's case that just before the occurrence, P.W.2 and his sons and others attempted to severe further the ridge of A1.

17. At this juncture, it has to be seen as to who was the aggressor, for which the civil right of the respective parties also should be seen. On the appellants' side it was argued that the prosecution has not placed before the Court any such evidence to enlighten the Court as to how the accused party high handedly acted as against P.W.1 and his people and thereby proved themselves or exposed themselves as aggressors. For this argument, we would like to high light that the evidence already on record is more sufficient and that too in the wake of the evidence of P.W.5 to find out as to who was the aggressor. Undoubtedly and unassailably, uncontrovertibly and undeniably, the channel which runs between the land of P.W.2 and A1 happened to be a Government channel; the land of Pichai is at higher level for which the water could not be taken without putting temporary Muttu; the accused's land is also enjoying the facility of getting irrigated through one other channel to the South of the first accused's land as found in Ex.P27-the sketch and as found in the evidence of P.W.5-V.A.O. In no way, the accused was affected by P.W.2 putting up such Muttu. It is not the case of any one that P.W.2 acted so as to cause loss to A1. It is not the case of A1 that his land got dried because of lack of irrigation facility caused by the high handed act of P.W.2 in putting up the Muttu. Whatever may be the grievance of the first accused, he ought to have approached the Revenue Authorities concerned or the Police. But A1 with his men swung into action on 30.11.1992. Jeddert Justice or adhering to kyfoxd flaw is abominable in Indian setting and in any civilised country.

18. The one other important test to find out as to who was the aggressor just before the incident, is to see as to what made the accused party or the prosecution party to be at that place of occurrence. Admittedly, here the place of occurrence is the channel where the prosecution party had put up the Muttu. The learned Senior Counsel appearing for the appellants would advance the argument that in response to the Panchayat scheduled to be held only, the accused had chosen to visit the place of occurrence. There is some hollowness and emptiness in that plea for the reason that nowhere it is found in the evidence that the Panchayat was scheduled to be held during morning hours on the date of occurrence i.e. on 30.11.1992. It is therefore crystal clear that the accused party armed with dangerous weapons with the object to demolish the Muttu and prevent P.W.2 and his men from further putting up the Muttu, barged into that place of occurrence.

19. So far P.W.2 and his men are concerned, the prosecution explained that on the previous date of occurrence i.e. on 29.11.1992 they obtained permission from A1 in the presence of Panchayators, but A1 demolished the Muttu put up by P.W.2 contrary to A1's consent before the Panchayators, that thereupon the Panchayators, directed P.W.2 to once again put the Muttu and that alone made P.W.2 and his men to be at the place of occurrence.

20. In such circumstances only, the accused party came there and staged the attack. Inasmuch as P.W.2 and his men explained constitutingly that just before the occurrence they acted with the genuine intention to put up the Muttu and that too after getting permission from the Panchayators, they cannot be labelled as immediate aggressors at the time of occurrence. It is therefore clear thatthe presence of accused at the channel which cannot be the venue for Panchayat and that too with deadly weapons like dagger, etc. and also their act of inflicting injuries, resulted in projecting them as aggressors.

21. While holding so, we are not inclined to hold that the accused party was out and out aggressors of the worst sort. They only arrived at the place of occurrence by way of carrying out their object of preventing the Muttu being put up by P.W.2 and his men. Our above discussion would show that the Government channel is meant for the use of both sides. In such a case there is no difficulty on our part to come to the conclusion that both sides attempted to establish their right to use the water from the channel. It is not that the accused party could be viewed as rash trespasser who without having any iota of right acted with the object of intimidating and grabbing the land of P.W.2. The accused party cannot be termed as Scroungers.

22. In such a case, even though the accused were armed with weapons and went to the spot yet the mitigating circumstance was that they went to the spot to assert their prima facie right. It is one thing to weigh in legal golden scale as to whether the accused was perfectly legal in acting as above, but Pregnantically and practically it has to be seen that in villages for the purpose of asserting their right at times people resort to such action without recourse to law. We do not mean to recognise such act of direct action by such people under the guise of ascerting their right, but what we would high light is that at times such villagers swing into action by way of exercising their civil right. Now we have to see as to whether the prosecution party was perfectly justified in putting up the Muttu in the channel as found in Ex.27, the sketch and that too after sensing that A1 and his men are totally against such putting up of Muttu. Either of the parties could have approached the civil Court for injunction or the Government Authorities for help. But they have not chosen to do so. Our discussion elucidates that the immediate aggressors were the accused party but some time before it, the act of the prosecution party also was provocative in nature, because in the Government channel they resorted to such putting up of Muttu to the utter dislike of the accused party.

23. Hence we hold that in one way some time before the occurrence, the prosecution party also indulged in provocative act in one sense, by putting up such Muttu and the accused party just before the occurrence proved themselves as aggressors. In such circumstances alone the clash between the two groups resulted.

24. At this juncture, we proceed to discuss relating to the weapons used by both sides and the nature of the injuries sustained by the parties so as to find out as to who took undue advantage of the situation and exceeded the limits of asserting their civil rights.

25. The ground No.15 of the memorandum of the appeal is extracted here under:-

"The trial Court ought to have held that the prosecution witnesses were the aggressors and the accused had acted(in) self defence." [emphasis supplied]

26. As such the defence theory was that the prosecution party was the aggressor and the accused simply acted in self defence. However, the entire prosecution case is that when P.W.2 and his men were there at the channel putting up the Muttu, the accused who came with the deadly weapons and attacked them by using dagger, aruval, crowbar etc., and that the prosecution party defended themselves with spade and sticks. In the F.I.R. P.W.1 would state that the prosecution party used only the stumps and not spade.

27. The learned Senior Counsel appearing for the appellants would state that the witnesses indulged in subsequent improvements as an after thought by way of explaining the cut injuries on the accused side by stating that the spade also was used by the prosecution party. It is therefore just and necessary to refer to the history recorded by the Doctor in the respective wound certificates of those injured persons on both sides.

28. At this juncture, we would like to highlight one important point with reference to the decision of the Honourable Supreme Court in Rehmat v. State of Haryana reported in 1997 CRI.L.J 764 which would mandate that it is the duty of the Doctor to specify the names of all the assailants if furnished to them by the injured or the person accompanying the injured while recording the history. An excerpt from it, would run thus:

"10. There is also another aspect which goes in favour of the appellant. Admittedly Padam Singh (PW 4) along with Vijay Singh had first gone to the Primary Health Centre for medical help but he did not disclose the name of the assailant to the Doctor. Ordinarily, in a medico legal case, the doctor is supposed to write down the history of the injured but admittedly in this case, medical papers of Padam Singh (PW 4) do not indicate the name of the assailant." [emphasis supplied]

29. Ex.P4, the wound certificate relating to Pichai-P.W2 would envisage the history recorded by the Doctor and the injuries observed by him as under:- "certain injuries said to have been caused on 30.11.1992 and to be due to alleged assault my known persons at Markayam Kottai at 10.00 a.m. Injuries:-

1. Curt injury behind left Ear 6cm X 3cm X 2cm bone exposed.

2. Cut injury left eyebrow 4cm X 3cm X 1cm

3. Cut injury for head 2cm X 2cm X 1cm

4. An incised wound of about 10cm X 3cm X 5cm over left leg below knee joint bone exposed.

OPHTHALMIC OPINION:

Macular injury Left Eyewitnesses

grievous injury because of impairment of vision in Left eye."

30. Ex.P5, the wound certificate relating to P.W.4 would envisage the history recorded by the Doctor and the injuries observed by him as under:- "Certain injuries said to have been caused on 30.11.1992 and to be due to alleged assault by known persons with Aruval and crowbar at Markayankottai at 10.00 a.m. 30.11.1992 identification and scar marks. Injuries:

1. Incised wound fore head left side: 5cm X 3cm X 2cm.

2. Incised wound over occipetal 4cm X 3cm X 2cm

3. Blunt Injury left fore arm swelling 10cm X 5cm. OPINION

Injuries are simple."

31. Ex.P6, the wound certificate relating to P.W.13 would envisage the history recorded by the Doctor and the injuries observed by him as under:- "Certain injuries said to have been caused on 30.11.1992 and to be due to assault by known persons with kz;btl;o fiz, Crowbar. Injuries:

1. Incised wound over right tempera parietal region 2cm X 1cm X1cm.

2. Blunt injury over right shoulder. Tenderness present. Suturing done

OPINION

Treatment given

Injuries are simple."

32. Ex.P7, the wound certificate relating to P.W.3 would envisage the history recorded by the Doctor and the injuries observed by him as under:- "Certain injuries said to have been caused on 30.11.1992 and to be due to alleged to have been assaulted by known persons with Crowbar at 10.00a.m. at Markayamkottai fields.

Injuries:-

1. Incised would over right parietal region 3cm X 2cm X1cm

2. Contusion over right fore arm 3cm X 2cm

3. Swelling over right dorsal region of middle finger 1cm X 1cm.

4. Abrasions & bruises right knee. OPINION

Injury simple in Nature."

33. A perusal of the above wound certificates would elucidate that those witnesses P.Ws.2, 3, 4 and 13 furnished the history to the Doctor that certain known persons attacked them at Margeyankottai at 10.00 a.m. on 30.11.1992 with weapons such as Aruval and Crowbar including, spade but only P.W.2 did not say about any weapon. After the decision of the Hon'ble Apex Court, the above said versions of the witnesses as found recorded by the Doctor could rightly be taken as the narrations given by the witnesses at the earliest point of time.

34. P.W.10, the Doctor Muthuramalingam would speak about the injuries sustained by P.W.2 with reference to Ex.P4. P.W.9, the Doctor Chellapandian would speak about the history recorded by him and the injuries sustained by P.W.4-Mahendran with reference to Ex.P5. The same Doctor Chellapandian also with reference to Ex.P6 would narrate that it was he who recorded the history and observed the injuries on Chinnasamy.

35. P.W.9 also with reference to Ex.P7, the wound certificate relating to Mohan-P.W.3 would speak about it. He also with reference to Ex.P6, the wound certificate concerning P.W.13 spoke about the contents of it. As such, all those injured witnesses narrated about the incident and the fact remains that P.W.2 sustained grievous injury as his eye got affected. P.Ws.3,4 and 5 sustained only simple injuries.

36. The oral and documentary evidence of those witnesses coupled with medical evidence, unequivocally and incontrovertibly establishes the fact that they were attacked by the accused party.

37. Further we proceed to discuss the facts relating to Ex.P8 to P14, the wound certificates relating to A1, A2, A7, A5, A3, A6 and A4 respectively. The same yardstick which was applied for analysing the wound certificates concerned with the prosecution witnesses, should be made applicable for analysing Exs.P8 to P14. There cannot be one yardstick for the prosecution side and other for accused side while evaluating and assessing the admissibility of the history relating to the crime and the nature of the injuries sustained by them.

38. Ex.P8, the wound certificate relating to A1 would envisage the history recorded by the Doctor and the injuries observed by him as under:- "Certain injuries to have been caused on 30.11.1992 and to be due to alleged to have been assaulted by known person with stick and Arival at 8.00 a.m. at Markayamkottai field on 30.11.1992.

Injuries:

1.Lacerated wound 3cm X 2cm & swelling haemotama right arm 5 X 4cm swelling present fracture humerus.

2. Cut injury frontal bone region 3cm X 1cm X1/2cm patient referred to Madurai GRH for further management.

OPINION

Injury Right arm: grievous."

39. Ex.P9, the wound certificate relating to A2 would envisage the history recorded by the Doctor and the injuries observed by him as under:- "Certain injuries said to have been caused on 30.11.1992 and to be due to assaulted with Aruval and stick.

Injuries:

1. Incised wound 3cm X 2cm X 1cm over occipital region.

2. Lacerated wound left knee 3cm.

3. Abrasions over 10cm over right clavicle. OPINION

Simple injuries."

40. Ex.P10, the wound certificate relating to A7 would envisage the history recorded by the Doctor and the injuries observed by him as under:- "Certain injuries said to have been caused on 30.11.1992 and to be due to assault with Aruval and sticks and knife.

Injuries:

1.Injury incised wound 2cm ZX 1cm X 1cm over left side of forehead.

2. Incised would left parietal region 5cm X 2cm X1cm.

3. Contusion right elbow.

4. Linear contusion over lumbar region 10cm X transverse. OPINION

Injuries: Simple in Nature."

41. Ex.P11, the wound certificate relating to A5 would envisage the history recorded by the Doctor and the injuries observed by him as under:- "Certain injuries said to have been caused on 30.11.1992 and to be due to assaulted by known persons with sticks and knife. Injuries:

1. Incised wound over frontal region in midline 4cm X 2cm X 1cm

2. Abrasions over left palm. OPINION

Injuries are simple

Treatment given."

42. Ex.P12, the wound certificate relating to A3 would envisage the history recorded by the Doctor and the injuries observed by him as under:- "Certain injuries said to have been caused on 30.11.1992 and to be due to assault by known persons by crowbar, knife, stick and Aruval. Injuries:

1. A black mole over left clavicle.

2. A black mole over left chest. OPINION

Injuries are simple. Treatment given."

43. Ex.P13, the wound certificate relating to A6 would envisage the history recorded by the Doctor and the injuries observed by him as under:- "Certain Injuries said to have been caused on 30.11.1992 and to be due to assault by known persons with sticks, Aruval with knife. Injuries:

1. Incised wound 3cm X 2 cm X1cm in the occiput.

2. Incised wound below the first wound about 2cm X1cm X1cm.

3. In the right Parietal regions incised wound about 1cm X 1cm X1/2 cm.

4. Incised wound over lower (N.C.) right side 3cm X 2cm X1cm.

5. Incised wound 1cm X1/2 X1/2 cm over left arm just above elbow.

6. Contusion over right lumbar region. OPINION

Treatment given. Injuries are simple in nature."

44. Ex.P14, the wound certificate relating to A4 would envisage the history recorded by the Doctor and the injuries observed by him as under:- "Certain injuries said to have been caused on 30.11.1992 and to be due to assault with aruval at about 8.30. a.m. on 30.11.1992. Injuries:

A partially healed infected wound in the centre of the scalp about 1 X 1cm OPINION

Injuries are simple in nature."

45. P.W.9, the Doctor Chellapandian deposed with reference to the wound certificates of A1(P8), A2(P9), A3(P12), A4(P14), A5(P11), A6(P13), A7(P10). The aforesaid injured accused persons gave their versions to the Doctor that on 30.11.1992 they were attacked by known persons with aruval, sticks, crowbar , knife etc. However, broadly the accused witnesses would state as though the occurrence had taken place between 8.00 and 8.30. a.m. as A1 and A4 in the history furnished by them would refer to such timings. But the other injured accused did not refer to about the time of occurrence.

46. The learned Senior Counsel appearing for the appellants would advance the argument by placing reliance on such history recorded by the Doctor that such evidence would go to show that the prosecution party used dangerous weapons such as knife, aruval, crowbar and sticks and not merely stumps by way of private defence as alleged by them and that they intentionally possessed such dangerous weapons for levelling the attack on the accused party.

47. While we rely on the wound certificates of the prosecution witnesses, we cannot carve out any exception relating to relying on the wound certificates relating to the accused. As evidenced by Exs.P8 to P14, A1 sustained grievous injury (i.e.) fracture of right haemotama and the other accused sustained simple injuries.

48. The above delineation and analysis of the medical evidence would unambiguously show that the prosecution party and the accused party indulged in clash. However, each side exercised its right of private defence. In the wake of our discussion relating to the respective civil rights of the parties in sharing the water from the channel, neither the prosecution party nor the injured party could be exclusively held to be liable under any of the penal provisions, except the offence committed by A2 in inflicting two punctured wounds on the chest of the deceased Thalamuthu and committing culpable Homicide.

49. On the prosecution side P.W.2 sustained grievous injury. On the accused side A1 sustained grievous injury. Even those grievous injuries were not so serious or gruesome and the rest of the injured witnesses and the accused all sustained only simple injuries. It is a trait proposition of law that from the available evidence on record, the Court should draw reasonable inferences without indulging in conjectures and surmises. The nature of the injuries would show that neither side had any abnormal impulse or objeect to physically liquidate the other. Except A2's act in causing death of the deceased, the remaining part of the occurrence can rightly be excluded on the ground that each side based on their assumed exercise of civil right and under the misapprehension indulged in clash without taking recourse request to law. However, the act of A2 in intentionally causing the death of Thalamuthu cannot be simply thrown away or overlooked, phosphored or belittled, discarded or despised, excused or exhonerated by holding that A2's act also was covered by such assumed enforcement and exercise of civil right simply in a non-legal way.

50. The post mortem certificate Ex.P3 requires deep scrutiny and analysis. An excerpt from the Ex.P3 would run thus:-

"The following wounds and injuries are found on the body. Injury No I: An incised punctured wound on the middle of the chest, close to the sternum size 3 cm X 1 cm X bone deep.

II: An incised punctured wound on the left chest 2" below the left nipple. Size 3 cm X 1 cm X bone deep.

III: An incised wound 7 cm X . cm X . cm on the left deltoid region - Lateral side.

IV: An incised wound 4 cm X . cm X . cm on the left lower thigh lateral side. V: Multiple abrasions of various sizes found over the forehead above the right eye, middle of both eyes and above the left eye. VI: An incised wound 2 cm X . cm X . cm on the back of right ear lobe upper end. No other injuries found.

Internal:

Skull: No fracture of skull.

Brain: Substances Pale. Hyoid Bone: Intact Thorax: Left 4th rib broken at the medial end corresponding to Injury I. Left side pleura torn and a punctured wound corresponding to Injury I on (Torn) medial end of left lung middle lobe.

The left middle lobe of left lung is punctured thro' and thro'. Pericardium is torn at the upper end left side. Arch of Aorta is severed above the left artium corresponding to Injury I. Depth 3 cm X 1 cm X 10 cm left 5th & 6th inter costal space is punctured corresponding to Injury II. Left side pleura is torn and a punctured wound corresponding to Injury II is found on the lateral end of left lung lower lobe. Depth 3 cm X 1 cm X 8 cm. About 1 . litres of fluid blood found inside the left Thoracic cavity. Both lungs pale on section.

Heart: All chambers empty.

Abdomen: Spleen Pale on section Liver: Pale on section. Kidneys: Pale on section Bladder: empty. Intestines: Empty. Stomach: contains about 100 ml of brownish fluid. Mucosa pale.

Post mortem concluded at 12.30 p.m., on 1.12.1992. Opinion as to cause of death:

The deceased would appear to have died shock and haemorrhage due to injuries to vital organs. Death would have occurred 25-27 hours prior to autopsy."

51. P.W.8, the Doctor karunakaran with reference to Ex.P3, the post mortem certificate detailed and described the injuries observed by him on the dead body of Thalamuthu at the time of conducting the post mortem.

52. From the excerpt supra of Ex.P3, it is clear that the deceased sustained as many as six incised injuries. Of which, the first two injuries are incised punctured, wounds, one on the middle of the chest and another on the left side of the chest. The Doctor opined that the deceased died due to shock and haemorrhage as sequake to the injuries to the vital organs and that the death occurred 25 to 27 hours prior to Autopsy which synchronises with the evidence of the prosecution witnesses relating to the time of occurrence and the fact remains that the Doctor conducted post moterm at 11.00 a.m. on 1.12.1992 and the occurrence took place around 10.00 a.m. on 30.11.1992. The Doctor clearly and categorically high lighted in Ex.P3 that the left middle lobe of left lung was punctured thro' and thro'; pericardium was torn at the upper end left side; Arch of Aorta was severed above the left atrium corresponding to injury No.I. As such, A2 while inflicting the first injury should have inflicted that injury with that much force and intention to murder him and that alone caused such serious damage to Thalamuthu. Similarly, the second injury caused serious damage to the left side pleura and we need not once again repeat here what we have already extracted from Ex.P3, the post mortem certificate.

53. Those two injuries 1 and 2 were inflicted by A2 with that much severe force and intention to cause death and the Doctor clearly gave his opinion that those two injuries which caused damage to the inner portion of the Thorax injuring the vital organs resulted in Thalamuthu's death. The nature of the injuries are the sure test to understand the aggressive and diabolic gravity of the mental status and the attitude with which the accused inflicted the injuries.

54. Our above discussion, would deficit and picturise that the circumstances did not warrant at all, A2 to act in such a cruel and gruesome manner as against deceased.

55. The injured prosecution witnesses in unison would portray as to how A2 inflicted such stab injuries 1 and 2 on the chest of deceased Thalamuthu. In fact, the deceased Thalamuthu is the son of P.W.1, whereas the riparian owner was P.W.2 and centring his civil rights alone, the occurrence had taken place but the witnesses would narrate that when P.W.2 was targeted at the time of attack, the deceased Thalamuthu intervened and as such Thalamuthu became the target of attack by A2. No doubt, on the defence side it was elicited out during cross examination of P.W.1 that in the F.I.R. P.W.1 did not state so. It is a trait proposition of law that F.I.R. is not an encyclopaedia of all information relating to the crime.

56. P.W.2 during cross examination spelt out as under:- "Kjy;ehs; mHpj;j Kl;il kWehs; Kl;il fl;of;bfhz;oUf;Fk;bghGJ jhd; rk;gtk; ele;jJ. Kl;Lf;fl;o Koj;jgpd;g[ jhd; jfuhW vd;W brhd;dhy; rhpay;y. bjw;F filrpapy; Kl;Lf;fl;lhky; ghf;fp bfhQ;rk; ,Ue;jnghJ jfuhW te;jJ. ehd; brhy;tJnghy; vJt[k; elf;ftpy;iy vd;Wk;> ma;ahnjth; mth; epyj;jpy; jz;zPh;gha;r;Rk;bghGJ mtuJ tug;ig btl;ondhk; vd;Wk;> mij Kjy; vjphp nfl;Fk;bghGJ mtiu fk;ghy; moj;J fhag;gLj;jpndhk; vd;W brhd;dhy; rhpay;y. vd; kfd; knfe;jpud; Kjy; vjphpia mUthshy; btl;o fhag;gLj;jpdhd; vd;W brhd;dhy; rhpay;y. ehq;fs; vjphpia Fj;jpa Fj;J jtwp jhsKj;Jtpd; kPJ ,uz;L Fj;J tpGe;jJ vd;W brhd;dhy; rhpay;y."

57. As such, P.W.2 narrated the circumstances under which the actual occurrence took place.

58. In fact, while cross examining P.W.2-Pichai, the defence had put forth its theory as though P.W.2 and others attempted to stab the accused party, and those stabbings landed on Thalamuthu.

59. The trial Court at para No.33 of its Judgement correctly commented upon such defence as to how it was improbable which the Court could not digest it. Accidentally, the injury intended to be inflicted on the opposite party might fell on the member of ones own party and cause slight injury but by no stretch of imagination, it could be held that those first and second injuries in Ex.P3 might have landed on Thalamuthu accidentally.

60. It is therefore crystal clear that so as to enable A2 to wriggle out of his criminal liability, such a suggestion was put to P.W.2 during cross. The right of private defence, in the facts and circumstances of this case, A2 cannot press into service as there is nothing to show that A2 for the purpose of saving his own life went to the extent of inflicting such first and second injuries and caused Thalamuthu's death.

61. Our above discussion would high light that the situation was not that much serious as both sides sustained only simple injuries and P.W.2 and A1 alone sustained grievous injuries of lesser gravity. In such a situation, we cannot visualise that A1 was put under any grave of dire, imminent or indispensable necessity to safeguard himself had the right to kill Thalamuthu.

62. While holding so, we are also aware of the fact that A2 certainly in a fit of anger exceeded his limits and thereby intentionally caused the death of Thalamuthu. We should see from the evidence that A2 had no reason to take any pre-meditation or pre-plan in his mind to murder Thalamuthu. But he only at the spur of the movement exceeded his limit of private defence of safeguarding himself and killed Thalamuthu.

63. The learned Senior Counsel appearing for the appellants/accused would advance arguments to the effect that the Court cannot visualise what actually happened at the spot and there might have been grave situations prevailed at the spot. Objectively, the Court from the available evidence should decide the case. Merely, by entertaining remote possibilities, the Court cannot throw away the baby along bathe water. The prosecution witnesses while giving evidence relating to A2's act, gave clear and categorical statement that it was the A2 who inflicted those injuries on the chest. Had the prosecution witnesses thought of implicating the other accused such as A4 and A5 also for the murder of Thalamuthu by hook or by crook, they would have very easily deposed that one such fatal injury was inflicted by A2 and another injury was inflicted by one other accused. But they have not chosen to do so. They were specifically deposing that those two fatal stab injuries were inflicted by A2 only without giving any room for entertaining blew to a modicum extent of cloud of doubt.

64. The learned Senior Counsel appearing for the appellants cited various decisions and it is just and necessary to consider those decisions in seriatim. (i). 2003 SCC (Cri) 1829 ( State of Mathya Pradesh Vs. Mishrilal (dead) and others, would high light as to how the cross cases should be dealt with. An excerpt from the said decision would run thus:-

7. ... This Court in Nathi Lal v. State of U.P pointed out the procedure to be followed by the trial Court in the event of cross-cases. It was observed thus:(SCC pp. 145-46, para 2)

"2. We think that the fair procedure to adopt in a matter like the present where there are cross-cases, is to direct that the same learned Judge must try both the cross-cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross-case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross-case cannot be looked into. Nor can the Judge be influenced by whatever is argued in the cross-case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross- case. But, both the judgments must be pronounced by the same learned Judge one after the other."

8. In the instant case, it is undisputed, that the investigating officer submitted the challan on the basis of the complaint lodged by the accused Mishrilal in respect of the same incident. It would have been just, fair and proper to decide both the cases together by the same court in view of the guidelines devised by this Court in Nathi Lal case. The cross-cases should be tried together by the same court irrespective of the nature of the offence involved. The rational behind this is to avoid the conflicting judgments over the same incident because if cross-cases are allowed to be tried by two courts separately there is likelihood of conflicting judgments. In the instant case, the investigating officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either one of them must be false. In such a situation, legal obligation is cast upon the investigating officer to make an endeavour to find out the truth and to cull out the truth from falsehood. Unfortunately, the investigating officer has failed to discharge the obligation, resulting in grave miscarriage of justice."

65. At the time of argument, it so transpired vividly and barley to our satisfaction that the Police who registered the case at the instance of P.W.1, the prosecution party herein under Crime No.480/92 laid the Police Report as against the appellants/accused herein; however, the Police who registered the case in Crime No.481/92 based on complaint given by A1-Iyyarthevar, referred it as mistake of fact. Thereupon the accused party herein resorted to filing the private complaint before the Magistrate and Ultimately, the private complaint ended in an acquittal of the accused therein and as against which no appeal was filed before the High Court. As such, now only the case in Crime NO.480/92 reached the High Court in the form of the appellants/accused herein.

66. In fact, Ex.P30 is the report submitted by the Investigating Officer to the Magistrate concerned dropping the action under Crime No.481/92.

67. On the defence side Ex.D1 was relied on. Ex.D1, the arrest report under Section 62 Cr.P.C. was relied on and it shows that under Crime No.480/92 A2, A4 and the other accused persons were arrested by Police. While hearing the arguments nothing has been highlighted as to the significance of such Ex.D1. The main focus of the arguments on appellants side before us was not relating to the method and manner in which the cross cases were dealt with by the Court. However, the argument on the appellants side has been focused to the effect that the Investigating Officer failed to investigate impartially with reference to the injuries sustained by the accused.

68. Our discussion supra would high light as to how the occurrence took place and both sides sustained injuries and also as to how legally exert the act committed by A2 as against Thalamuthu, the others on both sides cannot be fostered with any criminal liability.

69. The following decisions of the Apex Court are on the same point that the prosecution was duty bound to explain the injuries on the accused. (i) (2006) 1 SCC (Cri) 108 (Balwan Singh Vs. State of Haryana) (ii) Nagarathinam and others Vs. State rep.by Inspector of Police. (iii) Lakhwinder Singh and others Vs. State of Punjab. (iv) (2003) 1 SCC 398 (Raghunath & others Vs.State of Haryana and another) (v) AIR 1976 SC 2263 (Lakshmi Singh and others Vs. State of Bihar) (vi) (2003) 10 SCC 57 (State of Orissa Vs. Babaji Charan Mohanty and another)

(vii) 1997 SCC (Cri) 1222 (Rambilas and others Vs. State of Mathya Pradesh).

Our aforesaid findings, comments and views are squarely based on the dictum as laid down in the cited precedent only.

70. The following two decisions of the Madras High Court are also relating to case and counter case:-

(i) 1988 L.W. (Crl.) 416 ( Veerappa Gounder & another Vs. State) (ii) 1990 L.W. (Crl.) (Sakkarai Ramasamy Vs. Alangara Muni Murugan)

71. Our above discussion would show that there is no quarrel over such proposition as found set out in those decisions and the main thrust of the argument is not focused on the method of dealing with the case and counter case, but relating to the non explanation of injuries on the accused by the prosecution side, our discussion supra would high light the realities involved in this case.

72. The learned Senior Counsel appearing for the appellants by relying on the Apex Court decision reported in (2002) 7 SCC 210 (Subramani and others Vs. State of Tamil Nadu) would advance his arguments to the effect that in the absence of any finding as to which of the accused persons exceeds the right of private defence and that too in the absence of evidence with precision and exactitude regard to the heat of the moment in which the right is exercised, the Court cannot fix on any one of the accused any criminal liability. An excerpt from the said decision would run thus:- "19. It is well settled that once it is held that the accused had the right of private defence and reasonably apprehended that death or grievous bodily hurt would be the consequence if the right of private defence was not exercised, the right of private defence of property extended under Section 103 I.P.C to voluntarily causing the death of the aggressor subject to restrictions mentioned in Section 99 I.P.C. In this case, if the appellants acted in exercise of their right of private defence of property, it cannot be said that they committed a criminal act in furtherance of a common intention, because Section 96 I.P.C makes it abundantly clear that nothing is an offence which is done in the exercise of the right of private defence. They did not intend to commit any criminal act or to do anything which may be described as unlawful. Their object was not to kill the deceased but to protect their property. It may be, that in a given case it may be found on the basis of material on record that some of them may have exceeded their right of private defence and for that they may be individually held responsible. But, it cannot be said that the murder was committed pursuant to a common intention to commit such crime. In somewhat similar circumstances in State of Bihar v. Nathu Pandey this Court considered the question as to whether the accused could be convicted under Section 302 read with either Section 149 or Section 34 I.P.C. It observed: (SCC p. 210 para 8)

"8. In order to attract the provisions of Section 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the assembly. Under the fourth clause of Section 141 as assembly of five or more persons is an unlawful assembly if the common object of its members is to enforce any right or supposed right by means of criminal force or show of criminal force to any person. Section 141 must be read with Sections 96 to 106 dealing with the right of private defence. Under Section 96 nothing is an offence which is done in the exercise of the right of private defence. The assertion of a right of private defence within the limits prescribed by law cannot fall within the expression 'to enforce any right or supposed right' in the fourth clause of Section 141.

20. It, therefore, follows that the intention of the appellants was not to cause the death of Jayavelu but they had acted in exercise of their right of private defence. While acting in exercise of the right of private defence, the appellants cannot be said to be motivated by a common intention to commit a criminal act. Common intention has relevance only to the offence and not to the right of private defence.

21. The question still arises whether the appellants can be convicted for having exceeded their right of private defence. In the instant case we are inclined to hold that the appellants had initially acted in exercise of their right of private defence of property, and later in exercise of the right of private defence of person. It has been found that three of the appellants were also injured in the same incident. Two of the appellants, namely, Appellants 2 and 3 had injuries on their head, a vital part of the body. Luckily the injuries did not prove to be fatal because if inflicted with more force, it may have resulted in the fracture of the skull and proved fatal. What is, however, apparent is the fact that the assault on them was not directed on non-vital parts of the body, but directed on a vital part of the body such as the head ... ..."

73. The following two decisions are also referred to suo-moto by us which would support the view taken by us.

(i) 2001 (9) SCC 681 (Gurmit Singh Vs. State of Punjab) An excerpt from the above said decision would run thus:- "12. The law as to failure of the prosecution to explain injuries sustained by the accused has been so stated in a recent decision by this Court in Takhaji Hiraji v. Thakore Kubersing Chamansing: (SCC p. 154, para 17) "[I]t cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence prosecution. Where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case." (ii) 2005(9) SCC 705 (State of Mathya Pradesh Vs. Ramesh) An excerpt from the above said decision would run thus:- "10. Only question which needs to be considered is the alleged exercise of right of private defence. Section 96 IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The section does not define the expression "right of private defence". It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of cir, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. In a given case the court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872( in short "the Evidence Act"), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97, that right extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault. The oft-quoted observation of this Court in Salim Zia Vs.State of U.P. Runs as follows: (SCC p.654, para 9). "It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove its case beyond reasonable doubt, the accused need no establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of prosecution witnesses or by adducing defence evidence."

The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.

11. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstances. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that if far outweighs the effect of the omission on the part of the prosecution to explain the injuries. (See Lakshmi Singh v. State of Bihar). A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict server and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject-matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; (ii) of any other person; and the right may be exercised in the case of any offence against the body and in the case of offences of theft, robbery, mischief or criminal trespass and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Section 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntarily causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence."

[emphasis supplied]

74. The aforesaid decisions have been followed by us in letter and spirit in deciding this case and it is obvious from the discussion supra. A2 acted in an undoubtedly harsh manner and disproportionate to the right of defending himself or any member of his group as the accused party sustained simple injuries and that too on non vital parts. As such, A2 could rightly be convicted for the offence under Section 304 (ii) IPC, in view of fact that his acts are covered under II Exception to Section 300 of IPC.

75. The learned Senior Counsel for the appellants would high light by drawing our attention that the Police did not register both the F.I.Rs properly and that the reaction of the injured persons, so as to say, the prosecution witnesses were abnormal as put forth by the prosecution. It was also drawn to our attention that Ex.23, the F.I.R. relating to Crime No.480/92 of this case was relating to the serial No. 088917 whereas the subsequent F.I.R. bearing Crime No.481/92 which was registered at the instance of A1, was bearing the earlier serial No.008915. No doubt, from the prosecution side there is no plausible explanation. Be that as it may, the perusal of both the F.I.Rs would show that the F.I.R. bearing Crime NO.480/92 was registered on 30.11.1992 at 11.15 hours whereas the F.I.R. bearing Crime No.481/92 was registered on the same day at 12.45 hours. In normal circumstances what the learned Senior Counsel argued relating to the registration of F.I.Rs. and the method and manner in which the prosecution witnesses went to various hospitals without going to the Police Station etc, would be material and significant. But here our discussion supra would show that there is no controversy over the date and time of occurrence at all. In fact, both the F.I.Rs were registered within a short time after the occurrence. Hence, no significance could be attached to the technical defects relating to the registration of F.I.R. If there is controversy relating to the date and time of occurrence, certainly the procedural defects in the F.I.R. would lead to various inferences. To the risk of repetition, however without being tautologous that in the circumstances admitted by both sides, the technical defects relating to registration of F.I.R. is quite insignificant.

76. Relating to the recovery of knife, M.O.1 at the instance of A2, the prosecution tried to prove it by examining P.W.16-Sankar and P.W.17-Samaraja and they turned turtle. At the time of arrest, A2 himself took out the knife and handed it over to the Investigating Officer and it was recovered under Ex.P29, the observation mahazar.

77. In view of the clinching oral evidence that it was A2 who used the dagger to cause the vital injuries, there is no hesitation in believing the version of Investigating Officer relating to recovery of the M.O.1, even though the recovery mahazar witness left the Investigating Officer high and dry during trial.

78. The Magistrate Court Clerk concerned, the prosecution established the fact of the Material Objects having been sent to the Forensic Science Laboratory for obtaining expert opinion thereon. A reading of Ex.P16 and Ex.P17 would establish the facts concerned. Ex.P18, the report furnished by Assistant Chemical Examiner to Government and the Assistant Director of Forensic Department dated 8.10.1993 would reveal the following facts:- "Item 1: A torn silken dhoti with brown fancy border stripes on which were profused dark brown stains.

Item 2: A ragged silken shirt on which were profused dark brown stains.

Item 3: A ragged bluish silken shorts sticking with earth on which were dark brown stains.

Item 4: A brown silken shirt with self coloured, white and blue stripes on which were dark brown stains.

Item 5: Earth mixed with stones and vegetable matter coated with cattle dung on which were dark brown stains.

Item 6: Earth mixed with stones and vegetable matter coated with cattle dung on which were dark brown stains.

Item 7: A wooden handle with two rusty metal rings and a hole at one end on which were dark brown stains.

Item 8: A spade sticking with earth on which were dark brown stains. Item 9: A spade sticking with earth.

Item 10: A spade sticking with earth.

Item 11: A dagger with wooden handle and rusty metal bands with brown leather sheath.

Item 12: Earth mixed with stones and vegetable matter coated with cattle dung.

Item 13: A spade without handle sticking with earth. Blood was detected on each of items 1` to 8 (both inclusive) but not on any of items 9 to 13 (both inclusive)

Simple from item 12 was used as control for items 5 and 6."

79. Ex.P19, the serologist report would further reveal the following fact:-

"The items mentioned in the main biology report referred, above have been examined and following results obtained.

Item No.

Description of articles

Origin

Group

Remarks

1

Dhoti

Human

B

-

2

Shirt

Human

-

Result of grouping test inconclusive

3

Shorts

Human

-

Result of grouping test inconclusive

4

Shirt

Human

B

-

5

Earth etc.

Human

-

Result of grouping test inconclusive

6

Earth etc

Human

-

Result of grouping test inconclusive

7

Wooden handle

Human

-

Result of grouping test inconclusive

8

Spade etc.

Human

-

Result of grouping test inconclusive

80. Simply because the expert could not trace any blood from the dagger, M.O.1 no adverse inference can be drawn for the reason that the evidence of Investigating Officer and the mahazar would show that after the commission of offence the second accused was having that dagger in his possession and at the time of his arrest, he took out from his waist and handed it over to Police. In such a case, non tracing of blood is not fatal to the case of the prosecution.

81. In the result, in view of the ratiocination and the reasons adhered to in analysing the evidence on record, the appeal is partly allowed by acquitting all the accused except A2 and the fine amount if any collected from such appellants/accused shall be refunded to them and the bail bonds executed by them shall stand cancelled.

82. Relating to A2, the conviction under Section 302 IPC is altered into one under Section 304 (I) IPC and he is sentenced to undergo rigorous imprisonment for seven years and the fine of Rs.1000 imposed relating to Section 302 IPC shall be treated as the fine imposed under Section 304(I) IPC. However, A2 is acquitted of all the remaining charges with which he was found

guilty and convicted and sentenced and the fine amount if any collected under those counts only shall be refunded to him. The trial Court is directed to issue Non Bailable Warrant to secure the presence of A2-Deivendran and commit him to jail to undergo the rigorous imprisonment of 7 years. Section 428 of Cr.P.C. shall be applied in computing the period of imprisonment. (D.M.,J.) (G.R.,J.) (20.01.2007) Index :Yes/No

Internet :Yes/No

rj2

1. The Inspector of Police,

Chinnamanur Police Station.

Theni/Madurai District.

2. The Additional Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.

D.MURUGESAN, J

AND

G.RAJASURIA, J

Criminal Appeal No.4 of 1999

20.01.2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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