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SUPREME COURT OF INDIA
V. KHALID AND G.L. OZA, JJ.
Seriyal Udayar, Appellant
Versus
State of T.N., Respondent.
Criminal Appeal No. 285 of 1978, D/- 25-3-1987.
Held, it is clear from the evidence of P.Ws. 3 and 4 that they did not see the incident as to how it began. Both claimed to have reached the scene after the trouble had started and the blade of the spade had fallen down as none of these two witnesses even noticed the falling of the blade. It is significant that although P.W. 3 was produced as an independent witness but he also is found to be a relation of P.W. 1. It is also clear from the evidence of these two witnesses that they do not talk about any injury to the accused person. P.W. 1 also in his deposition does not speak about the injury to the accused person whereas in his earliest version Exh. P.1 he had mentioned the injury caused to accused appellant No.1 and in the earliest version he bas not even mentioned about the two other eye-witnesses P.Ws. 3 and 4. It is therefore apparent that an attempt is made even by P.W. 1 to suppress the fact of injury to accused appellant No.1 The other witnesses have chosen not to speak about the injury to the accused-appellant and in view of these circumstances it appears that the inference drawn by the Sessions Judge was correct but the learned Judges of the High Court set aside the conclusions arrived at by the learned Sessions Judge without noticing these circumstances It is also clear that the learned Sessions Judge before whom the evidence was recorded his conclusion on appreciation of evidence deserves due weight. In view of this situation, in our opinion, the High Court was not right in interfering in this appeal against acquitta1. Even if on the basis of material as it stands, the right of private defence of the accused-appellant is not established still the material produced in cross-examination and circumstances discussed above do indicate that the incident might have happened in a manner in which it was suggested by the accused appellant and in this view of the matter it could not be said that the prosecution has been able to establish the offence against the appellant beyond reasonable doubt. In this view of the matter the appeal is allowed, the conviction and sentence recorded by the High Court are set aside. The appellant is acquitted of the charges leveled against him. The appellant will be set at liberty forthwith. (Para 16)
Judgement
OZA, J.:- This appeal arises out of the conviction of the accused-appellant 1 under S. 302 and also under S. 447 is sentenced to imprisonment for life and 3 months rigorous imprisonment respectively whereas accused 2 was sentenced to one year rigorous imprisonment under S. 324 and 3 months under S. 447, I.P.C. All sentences to run concurrently awarded by the High Court of Madras in an appeal against acquittal filed by the State. The two accused were tried before Sessions Judge, Pudukkottai in Sessions Case No. 5 of 1976 for offences under Ss. 447 and 302 read with Ss. 34 and 324, I.P.C. This appeal has been preferred only by the present appellant who was sentenced to imprisonment for life and he preferred this appeal from jail. It appears that the other, accused has served out the sentence and has chosen not to prefer the appeal.
2. According to the prosecution PW 1 Santhiyaggo was residing with his mother Arokiya Mari and his brothers along with Arokiyaswami the deceased in this case.
3. The accused appellant 1 had married Upakaramari the elder sister of PWs 1 and 2 and the deceased. Accused 2 is the son of accused 1. The accused on the one hand and P.W. 1 and his brothers on the other owned agricultural lands adjacent to each other with a ridge separating their lands.
4. It is alleged that a day prior to the occurrence i.e. on Monday, 1st of December, 1975 at about 6 a.m. P.W. 1 and P.W. 2 and the deceased were carrying out agricultural operations in their fields which is immediately to the east of the land belonging to the accused. Arokiyaswami was ploughing their land while P.W. 1 was breaking the clots with the spade and P.W. 2 who is a boy of 13 years and brother of P. W. 1 and Arokiyaswami was standing under a neem tree close by. During the course of these operations Arokiyaswami, the deceased scrapped a portion of the ridge between their land and the land belonging to the accused. According to the prosecution although the accused persons were also present in their field, but this scrapping of the portion of the ridge by the deceased was not noticed by the accused persons at that time.
5. Next day, i.e., on 2-12-76 at about 6 a.m., P.Ws. 1 and 2 and Arokiyaswami the deceased went to their field and Arokiyaswami started ploughing. At that time both the accused came there each carrying a spade and appellant 1 said to the deceased as to why he cut the bund yesterday when there was none and further said that you cut it now and they will see him. Saying this he struck the spade by the sharp side on the left wrist of the deceased causing an injury and thereafter second blow was inflicted causing injury a little above the left elbow. It is alleged that at this moment the blade of the spade slipped off and the blade fell on the ground. Arokiyaswami, it is alleged, ran towards his house but appellant 1 pursued him with the handle of the spade in his hand. At that time accused 2 inflicted a blow by the sharp side of the spade on P.W. 1 whereas appellant 1 after pursuing Arokiyaswami at some distance hit him on his head with the handle. Arokiyaswami is said to have caught. hold of the handle but appellant 1 wrested it again and gave a blow on the head as a result of which Arokiyaswami fell down.
6. According to the prosecution this incident was witnessed by P.Ws. 1, 2 and P.W. 3 who owns land to the South of the land belonging to the accused and P.Ws. 1 and 2 and according to whom he was also in his field at the time and came on the scene of occurrence hearing hue and cry from the field of Arokiyaswami. Similarly P.W. 4 who also has a field in that area after hearing the cry reached on the spot and witnessed the incident.
7. Immediately after Arokiyaswami fell on the ground that the two accused ran away and P.Ws. 1 and 4 carried Arokiyaswami to the house and then P. Ws. 1 and 2 took him in a cart belonging to their uncle to the Government Hospital where P. W. 5 the Civil Assistant Surgeon examined Arokiyaswami at 8.30 a.m. and
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