Ranjitham vs Basavaraj & Ors

Criminal Appeal No.130 of 1997 filed by Swami Kannu,

Basavaraj, Kumaran, Kanagaraj and Gnanapazham (original

accused 1 to 5 respectively) who are hereinafter referred to

as "A1" to "A5" respectively for convenience.

2. In Sessions Case No. 151 of 1993, A1 to A5 were

charged for offence punishable under Section 147 of the IPC.

A2 and A4 were charged for offence punishable under

Section 148 of the IPC. A2 to A5 were charged for offence

punishable under Section 341 of the IPC. A1 was charged

for offence punishable under Section 149 read with Section

341, offence punishable under Section 109 read with section

324 and offence punishable under Section 109 read with

Section 302 of the IPC. A4 was charged for offence

punishable under Section 324 of the IPC. A2, A3 and A5

were charged for offence punishable under Section 149 read

with Section 324 of the IPC. A2, A3 and A5 were charged

for offence punishable under Section 323 of the IPC. A2 was

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charged for offence punishable under Section 302 of the IPC.

A3, A4 and A5 were charged for offence punishable under

Section 149 read with Section 302 of the IPC.

3. The case of the prosecution needs to be narrated in

brief.

4. A2 to A5 are the sons of A1. PW-1 Pandurangan is the

younger brother of deceased Ranganathan, who was a

former Member of Legislative Assembly. He was a member

of ADMK political party. He used to, inter alia, run a rice

mill. A1 to A5 were residing at Dharmapuri while the

deceased was a resident of Madhikonpalayam Village. The

relations between the accused and the deceased were

strained.

5. On 11/11/1992 at about 7.30 p.m. PW-1 Pandurangan,

PW-4 Jabbar and one Nanjappan were sitting near a bus

stop at Dharmapuri. The deceased was also present. On

4

seeing A2, the deceased asked PW-1 to go and collect

donation for organizing a meeting at Dharmapuri in

connection with the visit of a Minister. A2 refused to pay the

amount and made some disparaging remarks about the

deceased. The deceased got annoyed and told him that if he

is not willing to pay donation he may not pay but he should

not make such comments. A2 persisted in making

comments and told the deceased that he will finish him one

day. PW-1 intervened in the quarrel. Thereafter, the

deceased and PW-1 got into a car and went to

Madhikonpalayam. They alighted near the rice mill. They

were discussing about the ensuing marriage of PW-1's son.

At about 1.15 p.m. PW-1 came out of the rice mill and saw

A1 to A5 coming from the east. On seeing PW-1, A2 to A5

held his hands and A1 instigated others to kill him. A4 beat

PW-1 with a cycle chain on his head, back of chest and left

side of the wrist. The others beat him with hands. PW-1

raised alarm. The deceased came out of the rice mill and

intervened. A1 instigated his sons to kill him. Thereafter A3

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to A5 held the hands of the deceased and A2 stabbed the

deceased on the left side of his chest. The deceased fell

down and all the accused ran away. PW-1 to PW-3 and PW-

5 rushed to the place and removed the deceased to the

Government Hospital Dharmapuri where he was declared

dead. PW-1 then went to Dharmapuri Police Station and

lodged his FIR (Ex.P-1). A2 was arrested on 19/11/1992.

A3 was arrested on 20/11/1992. The other accused

surrendered. After completion of the investigation the

accused were charged as aforesaid.

6. In support of its case, the prosecution examined as

many as 21 witnesses. A1 denied all the incriminating

circumstances and stated that a false case was foisted on

him. Version of A2 as evident from his statement under

Section 313 of the Code of Criminal Procedure (for short,

"the Code"), is important and needs to be stated. He

admitted that there was a dispute between his family and

the family of the deceased. The deceased and A1 belonged

6

to different political parties. According to him, PW-1 did not

ask for any donation from A2. Donation was asked by a

candidate from the political party to which the deceased

belonged and A2 made a remark that the amount, which has

already been collected, can be utilized for the meeting and

the deceased should not use such tactics. On 11/11/1992

the situation in Madhikonpalayam village was tense. When

he was going to his father's house he learnt that he and his

family members were going to be beaten up by persons

belonging to the deceased's political party and that at 9.30

p.m. they are going to burn tyres and throw them on their

rice mill. He, therefore, asked his father and other members

of his family to leave the house and take shelter at a

different place. While he was proceeding to Tirupathur

Road, A3 was attacked by PW-1 with a stone. A3 ran away

from the place. On seeing him, PW-1, PW-3 and two others

held him and dragged him towards the mill and threatened

him that he is going to be tied and thrown into fire.

According to A2 in order to escape from their attack and

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save his life, he took out a penknife, which was in his key

bunch, and stabbed generally with it without targeting

anybody or any part of the body and, thereafter, ran to

Madhikonpalayam Police Station and surrendered. A3 was

at the Police Station. A complaint was given to the Police

Officer about the burning of his rice mill but the Police

Officer did not record the said complaint. He also stated

that the henchmen of the deceased damaged their

properties, but the police did not take any action against

them because they belonged to a particular political party.

The police acted in a biased manner and implicated all his

family members in this case. He denied that A1 instigated

A4 to beat PW-1 with a cycle chain. He did not handover

knife (M.O.-1) to the police. A3 filed a written statement and

took a similar stand.

7. The trial court held A1 to A5 guilty under Section 147

of the IPC and sentenced each one of them to simple

imprisonment for one year. A1 was found guilty under

8 Section 302 read with Section 109 of the IPC and sentenced

to life imprisonment. A2 was found guilty under Section 148

of the IPC and sentenced to 18 months simple

imprisonment. A2 was found guilty under Section 302 of the

IPC and sentenced to life imprisonment. A2, A3 and A5 were

found guilty under Section 341 of the IPC. Each one of them

was sentenced to 2 weeks simple imprisonment. A3, A4

and A5 were found guilty under Section 302 read with

Section 149 of the IPC and each one of them was sentenced

to life imprisonment. A1 was found not guilty of offence

punishable under Section 341 read with Section 149 of the

IPC and Section 324 read with Section 109 of the IPC. He

was acquitted of the said charges. A2, A3 and A5 were held

not guilty of offences punishable under Section 324 read

with Section 149 and Section 323 read with Section 34 of

the IPC. They were acquitted of the said charges. A4 was

found not guilty of the charge under Section 148 and 324 of

the IPC, he was acquitted of the said charge. The

substantive sentences were directed to run concurrently.

9 8. The High Court acquitted A2 holding that A2 had

stabbed the deceased in exercise of his right of private

defence. The High Court further held that since A2 had

stabbed the deceased in exercise of his right of private

defence, there was no question of the other accused

instigating him to stab the deceased. The High Court

acquitted all the other accused.

9. Criminal Appeal No.1700 of 2005 is filed by the State of

Tamil Nadu and Criminal Appeal No.1453 of 2005 is filed by

Ranjitham, wife of deceased Ranganathan challenging the

said judgment and order acquitting all the accused. During

the pendency of these appeals A1 (Swami Kannu) has died.

As against him the appeals have abated.

10. Counsel for the appellants vehemently contended that

the impugned order is perverse. Counsel submitted that the

High Court was wrong in accepting the argument that A2

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attacked the deceased in exercise of his right of private

defence. Counsel submitted that it is the accused who were

the aggressors and, therefore, plea of private defence could

not have been raised by them. Counsel submitted that the

High Court did not take note of the unassailable findings of

trial court. Counsel submitted that there is cogent and

adequate evidence of eye-witnesses which has been

overlooked and, therefore, it is necessary to set aside the

impugned judgment and order.

11. Counsel for the accused, on the other hand, submitted

that substantial part of the prosecution story is disbelieved

by the trial court. This being an appeal against order of

acquittal, this Court should be slow in disturbing the order of

acquittal. Counsel submitted that the evidence on record

clearly establishes the theory of right of private defence and,

hence, the appeals deserve to be dismissed. Counsel

submitted that, in any event, so far as A2 is concerned,

intention to kill the deceased cannot be attributed to him.

11 He could be convicted only under Section 304 Part II of the

IPC.

12. We are dealing with an appeal against acquittal. We

are mindful of the principles laid down by this Court through

a long line of judgments which guide a court dealing with an

appeal against an order of acquittal. Unless it appears to us

that the impugned judgment is perverse, we cannot

interfere with it. If the view taken by the court acquitting

the accused is a reasonably possible view, we cannot disturb

it because the presumption of innocence of the accused is

strengthened by the order of acquittal. If two views are

possible on appreciating the evidence and if the view taken

by the acquitting court is a reasonably possible view we

cannot substitute it by the other view just because it

appears to us to be a possible view. Keeping these well

established principles in mind we shall approach this case.

12 13. The strained relationship between the family of the

deceased and the complainant's family, is admitted. They

are related to each other. It is also apparent from the

evidence on record that the deceased belonged to ADMK

political party and the complainant's family belonged to the

rival political party. In fact, the incident in question is

preceded by some discussion about collection of donation for

the expenses of the proposed meeting of a Minister.

14. That the deceased was stabbed by A2 is admitted. A2

has taken up the defence of right of private defence. In

several decisions, this court has considered the nature of

this right. Right of private defence cannot be weighed in a

golden scale and even in absence of physical injury, in a

given case, such a right may be upheld by the court

provided there is reasonable apprehension to life or

reasonable apprehension of a grievous hurt to a person. It

is well settled that the onus of proof on the accused as to

exercise of right of private defence is not as heavy as on the

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prosecution to prove guilt of the accused and it is sufficient

for him to prove the defence on the touchstone of

preponderance of probabilities (See Sat Narain v. State of

H aryana 1 ) . In V Subramani & Anr. v. State of Tamil

N adu 2 , this Court examined the nature of this right. This

court held that whether a person legitimately acted in

exercise of his right of private defence is a question of fact

to be determined on the facts and circumstances of each

case. In a given case it is open to the Court to consider

such a plea even if the accused has not taken it, but the

surrounding circumstances establish that it was available to

him. The burden is on the accused to establish his plea.

The burden is discharged by showing preponderance of

probabilities in favour of that plea. The injuries received by

the accused, the imminence of threat to his safety, the

injuries caused by the accused and whether the accused had

time to have recourse to public authorities are all relevant

factors to be considered.

1 (2009) 17 SCC 141

2 (2005) 10 SCC 358

14

15. Whether A2 stabbed the deceased in exercise of his

right of private defence will have to be considered in the

light of the above principles. The High Court while holding

that A2 exercised his right of private defence, accepted A2's

explanation that A2 had to stab the deceased because his

properties were destroyed and henchmen of the deceased

dragged him with a view to tying him and throwing him into

the fire. The High Court has also observed that PW-19

Inspector Selvaraj has admitted that during the incident,

rice mill of A2, home of A1 and property of A3 were burnt

and though he received information about the said incident

at 3.30 a.m. on 12/9/1992, he did not register the

complaint. The High Court also noted that PW-16 Dr.

Asokan has, after examining A3, stated that he had found

that A3 had sustained an injury. This injury, which was

caused during the course of the same incident, has not been

explained by the prosecution. The High Court, therefore,

concluded that A2 had reasonable apprehension that death

15

or grievous hurt will be the consequence of the acts of the

deceased and his people and, therefore, he stabbed the

deceased in exercise of his right of private defence. It is not

possible for us to concur with the High Court on this

issue.

16. PW-1 has stated in his evidence that the incident

occurred near their rice mill. There is no challenge to this

statement. PW-19 Selvaraj, the Investigating Officer has

been cross-examined at length but no suggestion is put to

him that the incident of stabbing did not take place near the

rice mill of the deceased. Thus, it is clear that the accused

had gone to the rice mill of the deceased. It is also

pertinent to note that as per certificate (Exh.13) issued by

PW-14 Dr. Ramakrishnan, PW-1 had received simple

injuries.

17. To establish the right of private defence, the accused

have not laid any evidence. We have narrated, in detail, the

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gist of A2's statement under Section 313 of the Code.

Defence of A3 is also on similar lines. In short, A2's case is

that prosecution witnesses were aggressors. According to

him the atmosphere in the village was tense and there was a

threat that the rice mill and properties of the accused would

be set on fire by throwing burning tyres on them and, in

fact, the properties of the accused were set on fire. The

police adopted a partisan approach. They did not register

the complaint. It is further stated by A2 that while he was

approaching Tirupathur Road, A3 received a stone injury.

He ran away. On seeing A2, PW-1, PW-3 and others

dragged him towards the mill and threatened him that he is

going to be tied and thrown into fire and, therefore, in order

to escape from the attack he stabbed with a penknife

without targeting anybody. But the evidence on record does

not probabalise the defence version that the burning of the

properties of the accused was done before A2 stabbed the

deceased. PW-19 Inspector Selvaraj has stated that he

came to know at 3.30 a.m. on 12/11/1992 that the rice mill

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and he properties of the accused were burnt. It is pertinent

to note that as per FIR (Annexure P-1) recorded on

12/11/1992, the incident took place at 10.15 p.m. on

11/11/1992. It is not clear as to when exactly the burning

of properties of the accused took place. It is possible,

therefore, that the said incident was a reaction to the

murder of Ranganathan, the deceased. There is, however,

some substance in the contention of counsel for the accused

that the police did not promptly register the complaint of the

accused that their properties were burnt. This is supported

by the evidence of PW-18 S.I. Thangaraj and PW-19

Inspector Selvaraj. We record our dissatisfaction about this

inaction of the police. But, this does not lead us to

conclude that there was imminent threat to the properties of

the accused when the stabbing incident took place.

18. It is true that A3 received injury during the course of

this incident. But, according to PW-16 Dr. Asokan, it was a

simple injury. Its non-explanation by the prosecution, in the

18

facts of this case, does not have any adverse impact on the

prosecution case. The fact that the accused had gone to the

rice mill of the deceased is a circumstance which needs to be

taken into account while considering the plea of right of

private defence and it makes an irreparable dent in the said

plea. The High Court was, therefore, clearly in error in

drawing an inference that A2 stabbed the deceased in

exercise of his right of private defence. It is not possible for

us to concur with this finding of the High Court. In our

opinion, to this extent, the High Court's finding is perverse

and needs to be set aside.

19. What needs to be decided now is what offence has A2

committed. A2 has inflicted one stab wound on the

deceased with a penknife after an altercation between the

two sides. The blow landed on the chest, a vital part of the

body of the deceased. The question is whether A2 is guilty

of murder or culpable homicide not amounting to murder.

19 20. In H ari Ram vs. State of Haryana 3 , there was an

altercation between the appellant and the deceased. The

appellant had remarked that the deceased must be beaten

to make him behave. He thereafter ran inside the house,

brought out a jelly and thrust it into the chest of the

deceased. This Court observed that in the heat of

altercation between the deceased on the one hand, and the

appellant and his comrades on the other, the appellant

seized a jelly and thrust it into the chest of the deceased.

This was preceded by his remark that the deceased must be

beaten to make him behave. Therefore, it does not appear

that there was any intention to kill the deceased. This

Court, therefore, set aside the conviction of the appellant

under Section 302 of the IPC and instead convicted him

under Section 304 Part II of the IPC and sentenced him to

suffer rigorous imprisonment for five years.

3 (1983) 1 SCC 193

20

21. In J agtar Singh vs. State of Punjab 4 , in a trivial

quarrel the appellant wielded a weapon like a knife and

landed a blow on the chest of the deceased. This Court

observed that the quarrel had taken place on the spur of the

moment. There was exchange of abuses. At that time, the

appellant gave a blow with a knife which landed on the chest

of the deceased and therefore, it was permissible to draw an

inference that the appellant could be imputed with a

knowledge that he was likely to cause an injury which was

likely to cause death but since there was no premeditation,

no intention could be imputed to him to cause death. This

Court, therefore, convicted the appellant under Section 304

Part II of the IPC instead of Section 302 of the IPC and

sentenced him to suffer rigorous imprisonment for five

years.

22. In H em Raj v. The State (Delhi Administration) 5 ,

the appellant and the deceased had suddenly grappled with

4 1983 (2) SCC 342

5 1990 (Suppl.) SCC 291

21

each other and the entire occurrence was over within a

minute. During the course of the sudden quarrel, the

appellant dealt a single stab which unfortunately landed on

the chest of the deceased resulting in his death. This Court

observed that as the totality of the established facts and

circumstances show that the occurrence had happened most

unexpectedly, in a sudden quarrel and without premeditation

during the course of which the appellant caused a solitary

injury to the deceased, he could not be imputed with the

intention to cause death of the deceased, though knowledge

that he was likely to cause an injury which is likely to cause

death could be imputed to him. This Court, therefore, set

aside the conviction under Section 302 of the IPC and

convicted the appellant under Section 304 Part II of the IPC

and sentenced him to undergo rigorous imprisonment for

seven years.

23. In V. Subramani, there was some dispute over

grazing of buffaloes. Thereafter, there was altercation

22

between the accused and the deceased. The accused dealt

a single blow with a wooden yoke on the deceased. Altering

the conviction from Section 302 of the IPC to Section 304

Part II of the IPC, this Court clarified that it cannot be laid

down as a rule of universal application that whenever death

occurs on account of a single blow, Section 302 of the IPC is

ruled out. The fact situation has to be considered in each

case. Thus, the part of the body on which the blow was

dealt, the nature of the injury and the type of the weapon

used will not always be determinative as to whether an

accused is guilty of murder or culpable homicide not

amounting to murder. The events which precede the incident

will also have a bearing on the issue whether the act by

which death was caused was done with an intention of

causing death or knowledge that it is likely to cause death

but without intention to cause death. It is the totality of

circumstances which will decide the nature of the offence.

23 24. The deceased received a single stab injury. PW-15 Dr.

Subramani, who did the postmortem has described the said

injury as a stab injury seen at the left chest, that is, junction

of second rib bone and chest bone. On internal

examination, he found that the injury had gone inside the

left chest through the lungs into the heart. Undoubtedly,

the injury was serious and on a vital part of the body, but it

was caused by a penknife, which was in key bunch of the

accused. A key bunch is carried by a person in routine

course and a penknife is used for odd jobs, which a person

may be required to do during the course of the day. It is

not possible for us to say, in the facts of this case, that A2

had carried the penknife which was in his key bunch to stab

the deceased. The background of this case also needs to be

kept in mind. This case appears to have political overtones.

The accused and the deceased belonged to different political

parties. Admittedly, there was enmity between the two

sides. There had been an altercation between the deceased

and PW-1 on the one hand and the accused on the other

24

hand. PW-1 had, at the instance of the deceased, asked for

donation from A2 and A2 is stated to have made some

disparaging remarks. The situation in the village was tense.

The accused had then gone to the rice mill of the deceased.

There again, there was an altercation between the two

sides. The circumstances on record clearly indicate that A2

stabbed the deceased without premeditation, in a sudden

fight in the heat of passion. His case falls in Explanation 4

to Section 300 of the IPC. A2 knew that the act by which

the death was caused was likely to cause death but it

appears to us that he had no intention to cause death. In

the light of the abovementioned judgments of this court, this

in our opinion, is a fit case where A2-Basavaraj should be

convicted for the offence of culpable homicide not amounting

to murder and should be sentenced for five years rigorous

imprisonment under Section 304 Part II of the IPC. Needless

to say that he must be given set off for the period already

undergone by him.

25 25. So far as A1, A3, A4 and A5 are concerned, we are,

however, of the view that the High Court was right in

acquitting them. PW-1, PW-2 and PW-3 are eye-witnesses.

PW-1 has stated that A4 had levelled attack on his head,

back and chest with a cycle chain. The cycle chain is not

recovered. PW-14 Dr. Ramakrishnan, who has examined

him has stated that the injuries suffered by PW-1 were

simple injuries. PW-14 Dr. Ramakrishnan has further stated

that if the injuries suffered by PW-1 were caused by a cycle

chain, they would have caused imprint and he had not found

any imprint injuries on PW-1's body. So far as PW-2 is

concerned, he has rightly been disbelieved by the trial court

because his name is not mentioned in the FIR and the

evidence of PW-1 and PW-3 do not establish his presence.

PW-3 has given a version similar to that of PW-1. It is

pertinent to note that though PW-1 has stated that his

clothes were stained with blood, no such clothes were

recovered. All this leads us to conclude that the prosecution

26

story narrated by PW-1, PW-2 and PW-3 about the use of

cycle chain to beat PW-1 has rightly been disbelieved by the

trial court. A4 is, therefore, acquitted of charge under

Section 324 of the IPC. Since charge against A4 that he had

attacked PW-1 with cycle chain has failed, the trial court has

acquitted A1 of the charge that he had instigated A4 to

attack PW-1 with a cycle chain. Consequently A2, A3 and

A5 have also been acquitted of offence under Section 324

read with Section 149 of the IPC in respect of the alleged

cycle chain attack on PW-1. It is observed that they had no

intention to attack PW-1 with a cycle chain. The evidence on

record clearly establishes that only A2 had a penknife in his

key bunch. The other accused did not have any weapon

with them. The trial court has observed that the medical

evidence does not bear out the story that A2, A3, A5 had

attacked PW-1 with hands. Eye-witnesses have also not

stated so. Therefore, A2, A3 and A5 have been acquitted of

the charge under Section 323 read with Section 34 of the

IPC. The trial court has held that A1 had no intention to

27

wrongfully confine PW-1. He is, therefore, acquitted of

charge under Section 341 read with Section 149 of the IPC.

Having considered the evidence on record in depth, we are

of the considered opinion that so far as A1, A3, A4 and A5

are concerned, the substratum of the prosecution story has

given way. To hold them guilty for the stabbing of the

deceased with the aid of Section 149 or to hold them guilty

of murder with the aid of Section 109 after setting aside

their order of acquittal, in our opinion, would not be proper

because there is nothing perverse about the High Court's

order so far as their acquittal is concerned. In the result, we

pass the following order:

26. A2-Basavaraj is convicted for culpable homicide not

amounting to murder punishable under Section 304, Part II

of the IPC. For the said offence, he is sentenced to suffer

rigorous imprisonment for five years. Learned First

Additional District Judge and Chief Judicial Magistrate,

Dharmapuri at Krishnagiri is directed to ascertain whether

28

A2-Basavaraj has undergone any sentence. If he has

already undergone five years' sentence, then it is not

necessary to arrest him. If he has undergone less than five

years' sentence, then he is directed to be taken in custody

so that he serves rest of the sentence. If he has undergone

any sentence, he is directed to be given set off for the same.

In that case, after completion of the sentence, he is directed

to be released from custody unless he is required in any

other case.

27. Appeals are partly allowed in the aforestated terms.

.....................................................J.

(AFTAB ALAM)

.....................................................J.

(RANJANA PRAKASH DESAI)

NEW DELHI

NOVEMBER 28, 2011.