IMPORTANT POINT
If there is any reasonable doubt, even from prosecution evidence, that the aggressor in the occurrence was not the accused but would have been the deceased party, then benefit of that reasonable doubt has to be extended to the accused, no matter he did not adduce any evidence in that direction.

Headnote:(i) Indian Penal Code, 1860-Section 304 Part I r/ws 34-Culpable homicide not amounting to murder-Bad blood existed between deceased and second appellant s family-First appellant is son of second appellant-PW 1 and PW 2 are eye witnesses examined by prosecution-Delay in registering FIR-No conflict between ocular testimony and medical evidence-Conclusion of High Court that appellants inflicted fatal injuries on deceased with lethal weapons-Plea of right of private defence-Neither PW 1 nor PW 2 could explain how occurrence started-Law entitles appellants to have benefit of reasonable doubt concerning beginning part of occurrence and renders them liable for culpable homicide not amounting to murder-Conviction recorded by High Court under Section 302/34 altered to one under Section 304 Part I-Sentence of 7 years imprisonment (Evidence Act, 1872-Section 105).
       Held : Neither PW 1 nor PW 2 could say how the occurrence started. The possibility that before they reached the place, some events would have already taken place cannot be ruled out. PW 1 and PW2 over-heard the squeal of a pig. They also over-heard the sound of a quarrel. When they reached the scene they saw the carcass of a slain pig lying nearby. The motive suggested by the prosecution was sufficient for the deceased as well to entertain animus towards second appellant. Further, both sides would have confronted with each other on that morning abruptly without any prior knowledge or inkling that deceased might go to the plaintain grove at the crucial time for answering the call of nature. (Para 18)
       The above circumstances are broad enough to instill reasonable doubt in our mind that accused would have picked up a quarrel with the second appellant and then the other events had followed. Law entitles the appellants to have benefit of that reasonable doubt concerning the beginning part of the occurrence and renders them liable for culpable homicide not amounting to murder. (Para 19)
       (ii) Evidence Act, 1872-Section 105-Rule of burden of proof-If there is any reasonable doubt that aggressor in occurrence was not the accused but would have been the deceased party-Benefit of that reasonable doubt has to be extended to accused.
       Held : The traditional rule that it is for prosecution to prove the offence beyond reasonable doubt applies in all criminal case except where any particular statute prescribes otherwise. The legal presumption created in Section 105 with the words "the Court shall presume the absence of such circumstances" is not intended to displace the aforesaid traditional burden of the prosecution. It is only where the prosecution has proved its case with reasonable certainty that the court can rest on the presumption regarding absence of circumstances bringing the case within any of the exceptions. This presumption helps the Court to determine on whom is the burden to prove facts necessary to attract the exception and an accused can discharge the burden by preponderance of probabilities unlike the prosecution. But there is no presumption that an accused is the aggressor in every case of homicide. If there is any reasonable doubt, even from prosecution evidence, that the aggressor in the occurrence was not the accused but would have been the deceased party, then benefit of that reasonable doubt has to be extended to the accused, no matter he did not adduce any evidence in that direction. (Para 16)

JUDGMENT

Thomas, J.-We have pronounced the verdict in this appeal on 29.8.1996 by altering the conviction of the two appellants to the offence under Section 304 part I read with section 34 of the IPC and sentencing them each to rigorous imprisonment for seven years. However, we reserved our reasons thereof and hence we now state the reasons as under:-

2. First appellant (Periasamy) and second appellant (Ramaswamy) were prosecuted along with one Murugesam for offences under Section 302/34 IPC on the allegation that they with common intention to murder deceased Ranganathan attacked him with billhook, spear and lathi at about 9.30 a.m. on 12.6.1989. Sessions Court acquitted all the three accused, but the High Court of Madras, on appeal by the State, set aside the acquittal and convicted the two appellants under Section 302/34 IPC. The other accused Murugesan was, however, convicted only under Section 324 IPC. Appellants have filed this appeal under Section 2 of the Supreme Court (Enlargement of Criminal Appellate) Jurisdiction Act 1970.

3. Prosecution story, in brief, is the following :-

Periasamy (first appellant) is the son and Murugesan is the nephew of Ramaswamy (second appellant). About five years prior to the murder, second appellant s daughter Mallika was indecently assaulted by deceased Ranganathan for which there was a criminal case and Ranganathan was convicted in that case. A couple of years thereafter the plantain crops of deceased Ranganathan were destroyed by the goats of second appellant over which there was some altercation between them. Thus, bad blood existed between the deceased and second appellant s family.

On the morning of the occurrence day deceased Ranganathan in association with four other persons (including PW 1 and PW 2) engaged themselves in the work of shifting an oil engine to a field for irrigation purposes. By about 9.30 a.m. deceased Ranganathan alone went to a nearby plantain grove to ease himself. After a little while PW 1 and PW 2 heard the squeal of a pig followed by the yells of Ranganathan. PW 1 and PW 2 rushed to the place and then they saw the first appellant inflicting a blow on the neck of Ranganathan with a billhook and the second appellant stabbing him with a spear on the chest. When deceased tried to escape he was assaulted by Murugesan with lathi. Second appellant again stabbed him with the spear. Deceased fell down but first appellant cut him on the neck with the billhook two or three times more. Assailants thereafter took to their heels. Deceased Murugesan succumbed to his injuries within an hour.

PW 1 went to the local village administrative officer (PW-8) and informed him of the incident. PW 8 went to the spot of occurrence and verified the correctness of the information furnished by PW 1. After returning to his office PW 8 recorded the statement of PW-1 (Ext. P-1) which was forwarded to Velur Police Station. FIR was prepared on its basis and during investigation appellants were arrested. On completion of the investigation the police charge-sheeted the appellants and Murugesan arraying them as A1, A2 and A3, respectively.

4. PW 1 and PW 2 are the only eye witnesses examined by the prosecution. PW5 (Gunasekharan) deposed that PW 2 rushed to his house soon after the occurrence and told him of what the three accused did to the deceased and that he went to the spot with PW 2 and found his brother badly mauled. He made efforts to remove the injured to the hospital but his brother died before reaching the hospital. PW 6 said that she saw the three accused running away from the scene with the weapons. PW 7 said that he over-heard some pedestrians mumbling between each other that these three accused had given cut blows to the deceased and a little later he saw the accused washing themselves and cleaning the weapons beneath a bridge. PW 7 further said that he over-heard a conversation as between the accused that the weapons should be concealed and that they should consult a legal practitioner a

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1996 Supreme(SC) 1539

Cases Referred (4)