Sukumaran vs State Rep. By The Inspector Of Police

Sukumaran ….Appellant(s)

VERSUS

State Rep. by the Inspector of Police ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. This appeal is filed against the final judgment

and order dated 12.06.2008 passed by the High

Court of Judicature at Madras in Criminal Appeal

Signature Not Verified No.513 of 2006 whereby the Division Bench of the Digitally signed by ASHOK RAJ SINGH Date: 2019.03.07 17:29:11 IST Reason: 1 High Court partly allowed the appeal filed by the

appellant herein.

2. In order to appreciate the issues involved in

this appeal, it is necessary to set out the facts infra.

3. The appellant herein (A­1) along with co­

accused­Chinnakolandai (A­2) were tried for the

commission of the offences punishable under

Section 302 read with Sections 109 and 203 of the

Indian Penal Code, 1860(hereinafter referred to as

“IPC”), Section 36­A and E of the Tamil Nadu Forest

Act, 1882 and Section 3 read with Section 25 (1­B)

(a) of the Arms Act in the Court of Additional

Sessions Judge, Dharmapuri in Session Case

No.342/2004.

4. By Judgment/order dated 17.05.2006, the

Additional Sessions Judge convicted the appellant

herein(A­1) for the offences punishable under

Sections 302 and 203 IPC, Section 36­A and E of

2 the Tamil Nadu Forest Act and Section 3 read with

Section 25(1­B)(a) of the Arms Act and sentenced

him to undergo life imprisonment with a fine of

Rs.2000/­ and in default of payment of fine to

further undergo rigorous imprisonment for three

months under Section 302 IPC, to undergo rigorous

imprisonment for two years with a fine of Rs.500/­,

in default of payment of fine to undergo further

simple imprisonment for three months under

Section 203 IPC, to undergo rigorous imprisonment

for two years with fine of Rs.7,500/­, in default of

payment of fine, to undergo further simple

imprisonment for three months under Section 36­A

and E of the Tamil Nadu Forest Act, to undergo

imprisonment for two years with a fine of Rs.500/­

in default of payment of fine to further undergo

simple imprisonment for three months under

3 Section 3 read with Section 25 (1­B)(a) of the Arms

Act.

5. All the awarded sentences were to run

concurrently. So far as Co­accused­Chinnakolandai

(A­2) is concerned, he was acquitted from all the

charges.

6. The appellant (A­1) felt aggrieved by the order

of conviction and sentence passed against him and

filed criminal appeal in the High Court of Judicature

at Madras. So far as the order acquitting co­

accused­ Chinnakonlandai (A­2) was concerned, the

State did not file any appeal against that part of the

order and hence the order of acquittal of co­

accused­Chinnakolandai (A­2) became final.

7. The High Court, by the impugned order,

allowed the appeal in part and while setting aside

the conviction and sentence imposed on the

appellant under Section 302 IPC altered it to

4 Section 304 Part­II IPC and sentenced him to

undergo rigorous imprisonment for five years with a

fine amount of Rs.2000/­ and in default of payment

of fine, to further undergo rigorous imprisonment

for three months. The appellant was, however,

acquitted from the offence punishable under Section

36­A and E of the Tamil Nadu Forest Act and was

also acquitted from the offence punishable under

Section 25 (1­B) (a) of the Arms Act. However, the

High Court did not consider the case of the

appellant so far as his conviction under Section 203

IPC is concerned. The State has not filed any appeal

against that part of the order by which the appellant

was acquitted from the charges as detailed above.

8. So, the short question, which arises for

consideration in this appeal, is whether the High

Court was justified in convicting the appellant

under Section 304 Part­II IPC and was, therefore,

5 justified in awarding rigorous imprisonment for five

years.

9. In other words, the question to be considered

in this appeal is whether the prosecution was able

to prove beyond reasonable doubt that the appellant

was guilty for commission of the offence punishable

under Section 304 part II of IPC.

10. In order to answer this question, it is

necessary to take note of the prosecution case in

brief infra.

11. The appellant (A­1) was working as Forest

Range Officer in State Services. He was posted in

Dharmapuri forest area in the State of Tamil Nadu.

12. According to the prosecution, on 05.06.1988 at

around 6.30 a.m., the appellant while on duty was

going in his official jeep bearing Registration No.

TNC 9206 along with co­accused(A­2)­ driver of his

Jeep to Pennagaram Main Road from Kattampatti

6 Road. At that time, the appellant noticed that four

persons, namely, Basha­the deceased, Chan Basha

(PW­1), Ganesha (PW­2) and one cleaner were going

in a lorry bearing No. ADA 4869. On seeing the

lorry, the appellant chased it upto some distance.

However, Basha­the driver of the lorry drove it for

some distance and then stopped, got down from the

lorry and started running with his associates. The

appellant, at that time, fired a gun shot from his

DBL­Gun, which hit Basha s/o Ameer causing his

death.

13. On these allegations, the prosecution prayed

that the appellant is liable to be prosecuted for an

offence punishable under Section 302 IPC.

14. It is also the case of the prosecution that the

lorry, which the deceased ­ Basha was driving, was

empty. However, the appellant, after he shot Basha

from his gun which hit on his back, got down from

7 his jeep and then loaded 64 billets of sandal woods

weighing 276 KG and also kept one SBML Gun in

the lorry with a view to show that the deceased

party was smuggling sandal woods from the forest

area without holding a valid permit/license. It is

also the case of prosecution that the appellant with

the help of co­accused (A­2)­Driver then reached to

deceased party, caught hold of PW­1 and PW­2 and

brought them to the police station. Another person

Jaheer, however, managed to flee from the place.

15. It is also the case of the prosecution that the

appellant intentionally gave the false information by

lodging a complaint in the Police Station,

Pennagaram on 05.06.1988 stating therein that he

fired the gun shot to Basha in his right of private

defence.

16. On these allegations, the prosecution prayed

that the appellant be also prosecuted for an offence

8 punishable under Section 203 IPC. The

investigation was accordingly carried out. The

statements of the witnesses were recorded, material

items were seized and later the appellant and co­

accused(A­2) were apprehended. The charge­sheet

was accordingly filed against them and the case was

committed to the Court of Additional Sessions

Judge.

17. The prosecution, in support of their case,

examined 16 witnesses and filed 23 documents. 15

MOs were marked. The appellant (A­1) appeared as

DW­1 to prove his case. His statement under

Section 313 of the Criminal Procedure Code was

also recorded.

18. The Additional Sessions Judge convicted the

appellant (A­1) under Sections 302, 203 IPC and

Section 36­A and E of Tamil Nadu Forest Act read

with Sections 3 and 25 (1­B) (a) of the Arms Act.

9 The appellant was accordingly awarded sentence as

mentioned above. So far as co­accused (A­2) is

concerned, he was acquitted from all the charges.

19. The appellant felt aggrieved and filed appeal in

the High Court of Madras. The High Court, by

impugned order, set aside the conviction and

sentence imposed on the appellant herein under

Section 302 IPC and altered it to Section 304 Part II

IPC and accordingly awarded him 5 years’ RI. As

mentioned above, the appellant was acquitted from

all other charges. However, the High Court did not

consider the legality and correctness of the

conviction under Section 203 IPC, though impugned

by the appellant in his appeal.

20. It is against this order, the appellant (accused­

A­1) has felt aggrieved and filed the present appeal

by way of special leave in this Court.

10

21. Heard Mr. A. Raja Rajan, learned counsel for

the appellant (accused) and Mr. Balaji Srinivasan,

learned counsel for the respondent­State.

22. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeal, set aside the

impugned order and acquit the appellant from all

the charges for the reasons stated infra.

23. We find that the prosecution in order to prove

their case against the appellant had examined 16

witnesses. We also find that out of 16 witnesses, the

prosecution examined 2 witnesses, namely, (PW­1­

John Basha and PW­2 ­ Ganesh) as eyewitnesses to

prove the incident and the manner in which it

occurred. Indeed, the two Courts below also relied

on their evidence for sustaining the appellant's

conviction.

11

24. It is not in dispute, as is clear from the perusal

of Paras 18 and 19 of the judgment of the Additional

Sessions Judge dated 17.05.2006 and also para 2(a)

to (d) of the impugned order that both the eye

witnesses, i.e., PW­1, PW­2 and also PW­3 and PW­

7 were declared hostile.

25. In our considered opinion, when both the eye

witnesses–PWs 1 and 2 and also other two more

witnesses, namely, PW­3 and PW­7 were declared

hostile, there was no evidence to prove as to how

and in what manner, the incident in question had

occurred. In other words, apart from the evidence of

PW­1 and PW­2, the prosecution had not led any

evidence to prove the incident and the manner in

which the alleged incident had occurred .

26. Even on perusal of the evidence of PW­1, PW­

2, PW­3 and PW­7 to the extent it is permissible in

law because these four witnesses had turned hostile

12 coupled with perusal of the evidence of remaining

witnesses with a view to find out as to whether the

prosecution was able to prove their case against the

appellant beyond reasonable doubt, we find it

difficult to hold in favour of the prosecution that the

prosecution was successful in proving their case as

was required to be proved in law against the

accused(appellant herein).

27. Indeed, perusal of the evidence of remaining

witnesses, who were not declared hostile, clearly

shows that their evidence was not on the question

as to how and in what manner, the incident

occurred. We find their evidence to be on the

issues, such as proving of seizer, post­mortem

report, ballistic report etc. etc.

28. In the light of the foregoing discussion, we are

of the view that the prosecution was not able to

prove the manner in which the incident occurred as

13 alleged by them in their charge sheet. In this view

of the matter, the appellant was entitled to be

acquitted from the charges for want of any evidence

against him.

29. Be that as it may, since the appellant, in order

to prove his defence, examined himself as DW­1

after seeking permission under Section 315 of the

Code of Criminal Procedure, it is necessary to

examine the question as to whether the appellant

was able to prove his defence.

30. The appellant, in substance, took a defence

that he fired a gun shot on the deceased party in his

right of private defence.

31. Before we examine this question, it is apposite

to take note of the law relating to a right of private

defence.

32. Sections 96 to 106 of IPC deal with right of

private defence of a person involved in commission

14 of offences under the IPC. Section 96 of IPC says

that nothing is an offence, which is done in the

exercise of the right of private defence.

33. Section 97 of IPC provides that a right of

private defence extends not only to the defence of

one’s own body against any offence affecting the

human body but also to defend the body of any

other person. The right also embraces the protection

of property, whether one’s own or another person’s,

against certain specified offences, namely, theft,

robbery, mischief and criminal trespass. The

limitations on this right and its scope are set out in

the sections which follow. For one thing, the right

does not arise if there is time to have recourse to

the protection of the public authorities, and for

another, it does not extend to the infliction of more

harm than is necessary for the purpose of defence.

Another limitation is that when death is caused, the

15 person exercising the right must be under

reasonable apprehension of death, or grievous hurt,

to himself or to those whom he is protecting; and in

the case of property, the danger to it must be of the

kinds specified in Section 103. The scope of the

right is further explained in Sections 102 and 105 of

the IPC.(See observations of Justice Vivian Bose in

Amjad Khan vs. Haji Mohammad Khan, AIR 1952

SC 165)

34. This Court also examined this question in the

case of Darshan Singh vs. State of Punjab & Anr.

(2010) 2 SCC 333 and laid down the following 10

principles after analyzing Sections 96 to 106 IPC

which read as under:

“ (i) Self­preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to one who is suddenly confronted with

16 the necessity of averting an impending danger and not of self­creation.

(iii) A mere reasonable apprehension is enough to put the right of self­defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.

(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

(vii) It is well settled that even if the accused does not plead self­defence, it is open to consider such a plea if the same arises from the material on record.

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

(ix) The Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self­defence inflict any

17 harm even extending to death on his assailant either when the assault is attempted or directly threatened.”

35. In the light of the principle of law laid down by

this Court in the aforementioned two cases, we have

to examine the question as to whether the appellant

(A­1) was justified in exercising his right of private

defence when he fired a gun shot on the deceased

party.

36. At this stage, it is apposite to reproduce the

FIR (Ex­P­9), which was lodged by the appellant

immediately after the incident with Sub­inspector,

Police Station Pennagaram. It reads as under:

“EXHIBIT P 9 EXPRESS FIRST INFORMATION REPORT

B 785612

(FIRST INFORMATION REPORT IN RESPECT OF OFFENCE FOR WHICH AN ARREST COULD BE MADE BY THE OFFICER INCHARGE OF THE POLICE STATION WITH OUT THE ORDER OF THE COURT UNDER SECTION 184 OF THE CRIMINAL PROCEDURE CODE)

18 Crime No. 108/88 Police station: Pennagaram Section and Act: 302 IPC Circle: Pennagaram District Dharmapuri

I received copy of the complaint lodged by me free of cost.

Signature/ 5.6.88

Submitted Today the 5.6.88, Sunday at about 11.00 o’clock in the morning, Mr. S. Sukumar, Dharmapuri forest ranger appeared in the police station and lodged the complaint. The details of the complaint is as under:

S. Sukumaran, Forest ranger, Dharmapuri

To Sub inspector of police, Police Station, Pennagaram

Application number 1/88 dt. 5.6.88, Sir, On the basis of the information about the smuggling of sandal wood logs, I left Dharmapuri in a jeep along with my driver Mr. Chinnakulanthai on the evening at about 6.00 o’clock of 4.6.1988 in a jeep with registration number TND 2296 and reached Pennagaram. Through out the night we inspected Nazanoor area. We completed the inspection at about 5.00 o’clock in the morning and left the place. Near Vanathipaty, that is we reached near Kattampatty road, Kattampatty junction road, we saw a lorry

19 coming in the Kattampatty road. We stopped the lorry signaled the lorry to stop. Driver of the lorry turned the lorry to left. Engine of the lorry stopped We started to move towards the lorry. Persons in the lorry got down and started attacking us with stones. Glass pane of the lorry was broken. Immediately, they shouted that “you shoot them”. It was about 6.30 ‘o’clock in the morning. Then the deceased person has taken out a gun. I started early and I fired a gun shot one round in self defense. He dropped the gun and fell down. Thereafter, I apprehended other two persons 1. John Basha and 2. Ganesan.

Cleaner Zaheer escaped. When we went to see the above mentioned driver we found him dead due gun shot wounds. I am now handing over the country made gun which was in his possession and the gun with which I fired DBG 12 load (?) AB 8202321, empty cartridge and two other cartridges to you. I request you to take action on this. Sd. (S. Sukumaran), 5.6.88, Forest ranger, Darmapuri.

On the basis of the above mentioned I registered the complaint as crime number 18/88 of the police station under section 302 of the Indian Penal Code and prepared the express FIR and sent to the senior officer.

Sd.

5.6.88”

37. Reading the contents of the FIR (Ex­P­9)

coupled with the appellant's evidence (DW­1), we

20 find that firstly, there is a variation in the

prosecution version and the appellant’s version on

the manner in which the incident in question

occurred. However, having perused the FIR (Ex.P­9)

lodged by the appellant and his evidence as DW­1,

we are inclined to accept the version of the

appellant on the manner in which the incident

occurred.

38. In other words, having regard to the manner in

which the incident occurred, the appellant, in our

view, was entitled to exercise his right of private

defence against the deceased party inasmuch as it

was established on the basis of the factual scenario

on the spot that the appellant had reasonable

grounds for apprehending that either death or

grievous hurt would be caused to him or to his

driver (A­2). It is clear from the following facts and

the reasoning detailed infra.

21

39. First, when the incident occurred in the early

morning at around 6.30 a.m., the appellant was

patrolling in the forest in official vehicle with his

driver (A­2) since overnight; Second, by virtue of his

post, he was given Jeep and the gun for the

protection of forest area, forest produce, his own

body and the body of others on duty with him;

Third, the deceased party having seen that the

appellant was chasing their lorry made attempt to

flee from the place in the first instance but after

some time stopped and got down from their lorry

and started pelting stones on the appellant's jeep

which suffered damage; Fourth, the deceased party

consisted of four persons with weapon­Gun with

them whereas the appellant and his driver (A­2)

were two.

40. Fifth, there is no evidence to show as to why

the deceased party was roaming in the forest area in

22 their lorry in such early hours. Sixth, it is not in

dispute that the forest in question is known for

producing sandal woods and sandal wood being an

expensive commodity for sale in the market, the

people were indulging in its smuggling at a large

scale in the forest area; Seventh, the appellant had

noticed that the deceased party was trying to

become aggressor in an encounter between him and

the deceased party because the deceased party had

started pelting stones on them so that the appellant

is not able to apprehend them. Eighth, the

deceased party not only was pelting the stones but

also shouting “fire them”. Ninth, the appellant, in

such scenario, had rightly formed a reasonable

apprehension that either death or grievous hurt

may cause to him or/and to his driver (A­2). Tenth,

in these circumstances, it was enough for the

appellant to also react in his self defence against the

23 deceased party and fire from his gun towards the

deceased party to save him and his driver (A­2);

Eleventh, the appellant having seen the suspicious

moments of the deceased party in the forest area

rightly formed an opinion that the deceased party

was moving around in the forest to smuggle the

sandal woods. The appellant was, therefore, entitled

to chase the deceased party and apprehend them

for being prosecuted for commission of offence

punishable under the forest laws. Indeed, that was

his duty; Twelfth, there was no motive attributed to

the appellant towards any member of the deceased

party; Thirteenth, the appellant and A­2 rightly

caught hold of PWs 1 and 2 and brought them to

the police station; and lastly, the appellant promptly

filed a complaint(Ex.P­8/9) in the police station

narrating therein the entire incident and the

manner in which it occurred and also surrendered

24 the gun recovered from the deceased party and his

own gun.

41. One of the reasons which persuaded the High

Court to form an opinion against the appellant was

that the bullet fired by the appellant hit the

deceased in his back. It is on this basis, the High

Court concluded that there was no justification on

the part of the appellant to exercise his right of

private defence.

42. We do not agree. This finding of the High

Court was based on the prosecution story which we

have held that the prosecution failed to prove for

want of evidence. In any case, in our view, the

question as to whether the right of private defence is

available and, if so, whether it is rightly exercised or

exceeded, the same is required to be examined

keeping in view the entire background facts and

25 circumstances in which the incident occurred

resulting in firing the gun shot.

43. The High Court, in our view, failed to

appreciate that firstly, the appellant had every

reason to believe that due to suspicious moment of

the deceased party in the forest, they were trying to

smuggle the sandal wood from the forest. Secondly,

the deceased party was aggressor because, as held

above, they first pelted the stones and damaged the

appellant’s vehicle shouting “fire them”. Thirdly,

the appellant’s duty was to apprehend the culprits

who were involved in the activity of smuggling

sandalwoods and at the same time to protect

himself and his driver in case of any eventuality

arising while apprehending the culprits.

44. Having seen the incident in this perspective,

we are of the opinion that firing the gun shot by the

appellant towards the deceased party cannot be

26 said to be in any way unjustified. In fact, the

appellant while firing the gun shot did not target

any particular person out of four as such but fired

to resist their aggression towards him and his driver

(A2). If the appellant had not fired, the deceased

party having said “fire them” could either use their

gun in shooting the appellant or A­2 or would have

run away from the spot to avoid their arrest. It is

not in dispute that one gun was seized from the

deceased party on their arrest which was deposited

by the appellant along with his own gun in the

police station while registering the FIR (EX.P­9).

45. In our considered opinion, the prosecution

having failed to prove their case could still prove

that the appellant was liable to be convicted in the

light of defence version. The High Court, therefore,

could have gone into the question as to whether the

appellant had no right of private defence against the

27 deceased party on such facts or whether he

exceeded his right. The prosecution even failed to

prove this fact while cross examining the appellant.

We find that nothing could be solicited from the

appellant in his cross­examination on these two

issues.

46. In the light of foregoing discussion, we are of

the considered opinion that the case of the

appellant satisfies the test laid down in the case of

Amjad Khan (supra) and also satisfied the test laid

down in Clauses (ii), (iii), (iv), (v) and (viii) of

Darshan Singh (supra). In other words, it was a

case where the appellant had a reasonable

apprehension that the deceased party may cause

him and A­2 death or grievous hurt either by pelting

stones or by use of gun shot or by physical violence

jointly. In these circumstances, the appellant being

28 a forest ranger on duty was entitled to use his gun

against the deceased party.

47. In view of the foregoing discussion, we are of

the considered opinion that the Additional Sessions

Judge was not justified in convicting the appellant

for an offence of murder of Basha under Section

302 IPC. Similarly, the High Court was also not

justified in convicting the appellant for an offence

punishable under Section 304 Part II IPC. In other

words, in our view, the appellant was entitled for an

acquittal along with A­2 from the charges framed

against him.

48. So far as the appellant’s conviction under

Section 203 IPC is concerned, the High Court did

not deal with this question in the impugned order

though it was challenged by the appellant in his

appeal. Having examined this question, we are of

the view that the conviction under Section 203 IPC

29 against the appellant is also not legally sustainable

for want of any evidence adduced by the

prosecution.

49. As a matter of fact, once it is held that the

prosecution has failed to prove their main case, the

offence under Section 203 IPC also must fail. It is

also for the reason because we have held that the

appellant was justified in taking a plea of self

defence against the deceased party which he was

also able to prove with the aid of evidence. In any

event, in the absence of any evidence as to from

where the appellant got 64 billets of sandal woods

for loading in the lorry of the deceased party and

the gun, an offence under Section 203 IPC cannot

be held as made out against the appellant.

50. In view of the foregoing discussion, the appeal

succeeds and is accordingly allowed. The impugned

order is set aside. As a consequence, the appellant

30 is acquitted from all the charges. His bail bonds are

discharged and he is set free.

.………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [R. SUBHASH REDDY] New Delhi;

March 07, 2019

31