2006 Supreme(SC) 727

2006(6) Supreme 362
SUPREME COURT OF INDIA
(From Madras High Court)
G.P. Mathur and R.V. Raveendran, JJ.
Krishnan — Appellant
versus
State of Tamil Nadu — Respondent
Criminal Appeal No. 631 of 2000
Decided on 14-8-2006
Counsel for the Parties :
For the Appellant : M.S. Ganesh, Sr. Advocate, K. Seshachary and R. Ayyan Perumal, Advocates.
For the Respondent : V.G. Pragasam, Advocate.

IMPORTANT POINT
Though onus is on accused to establish that his action was in exercise of right of private defence but accused can discharge his onus by establishing a preponderance of probability.

Headnote:Indian Penal Code, 1860 — Sections 302 & 323 — Appellant convicted under by trial Court and High Court converted conviction u/s 304 Part II IPC — Plea of self defence — Deceased, brother of appellant and appellant were residing with their respective families in two adjoining portions with common open Court yard in front of their houses and used to have quarrels over Court yard — An open sewage drain in Court yard was covered with thorn sticks by wife of deceased to prevent pigs coming to the drain and appellant removed the sticks — Quarrel developed and appellant picked up thorn stick and hit deceased on his head and then pushed deceased who fell on ground and a protruding stone pierced near his arm pit — Deceased died in hospital due to injuries and doctors opined that death occurred on account of head injury and further opined that injuries were sufficient in ordinary course of nature to cause death — Trial Court accepting evidence of four eye witnesses and rejecting defence plea of private defence convicted appellant — High Court converted conviction u/s 304 Part II IPC — Appeal — Onus is on accused that his action who in exercise of right of private defence — Burden was however not as onerous as one on prosecution — PW2 was neighbour and nephew of both deceased and appellant and his evidence corroborated and supported case of self defence — Evidence of eye witnesses revealed that both deceased and his son attacked appellant with stick and to protect his head appellant raised the hands and got injured on elbow — Accused apprehending grievous hurt, picked up thorn stick lying on spot which probabilized a case of self-defence — Court has to be objective and examine the matter on facts and circumstances of each case if situation was such as was likely to reasonably cause apprehension in mind of accused that death or grievous hurt would be caused to him if he did not act in self defence — Act of appellant was in all probability on exercise of right of private defence — Conviction was liable to be set aside.

       Held : It is now well settled that the onus is on the accused to establish that his action was in exercise of the right of private defence. The plea can be established either by letting in defence evidence or from the prosecution evidence itself, but cannot be based on speculation or mere surmises. The accused need not take the plea explicitly. He can succeed in his plea if he is able to bring out from the evidence of the prosecution witnesses or other evidence that the apparent criminal act was committed by him in exercise of his right of private defence. He should make out circumstances that would have reasonably caused an apprehension in his mind that he would suffer death or grievous hurt if he does not exercise his right of private defence. There is a clear distinction between the nature of burden that is cast on an accused under section 105 of the Evidence Act (read with section 96 to 106 of Indian Penal Code) to establish a plea of private defence and the burden that is cast on the prosecution under section 101 of the Evidence Act to prove its case. The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability.(Para 9)

       Out of the four eye-witnesses, two (PWs.1 and 5) are the son and widow of the deceased. The evidence of these two witnesses establishes that there was enmity and an ongoing dispute in regard to the use of the common yard; That on the day of the incident, the entire quarrel arose because PW-5 initially placed the thorn sticks over the area where the appellant was tethering his cattle, and the deceased and PW 1 prevented the appellant when he tried to remove them; and that as a consequence there was an altercation between the deceased and the appellant when the deceased repeatedly placed the thorny sticks and the appellant repeatedly removed them. In fact the evidence of the two independent eye-witnesses- PW-2 and PW 4, clearly show that there was no stagnant water in the drain and therefore, there was no need to place any thorn sticks over that area. It is clear that the deceased, PW-1 and PW-5 were bent upon preventing the appellant from tethering his cattle in the common yard. In view of the admitted discord and disputes between the family of the deceased and the appellant, and being acting participants in the dispute which led to the incident, it is but natural that these two witnesses will highlight only the acts of the appellant and not the acts of the deceased and PW-1.(Para 12)

       In regard to the evidence of PW-4, Pitchaimuthu, we find that he saw the incident from a distance. He came out of his house only after the altercation/quarrel had gone on for some time and, therefore, had seen only a part of the incident. He admits that the altercation centred around the appellant asking why the thorn sticks were put at the place where he was tethering his cattle, and the deceased asking why appellant was removing the thorny sticks. He also admits that when he first saw the incident, both were holding the thorny sticks and pulling each other. He also admits that the deceased was repeatedly placing the thorny sticks and the appellant was repeatedly removing them. He also admits that both the deceased and the appellant quarreling and pushing each other, came from the drain area to the road. Therefore, the evidence of PW-2 Thangaraj becomes crucial. He had seen the incident from the beginning and has narrated what had happened. He has clearly admitted that when the deceased and the appellant were quarreling and pulling each other, Rathina Gounder bit the appellant in his hand between the right hand thumb and the index finger, and that both the deceased and his son Elumalai attacked the appellant with sticks and to protect his head, the appellant raised his hands and got injured in the elbow. It becomes obvious that apprehending grievous hurt, he took the thorn stick lying near by and hit the deceased to protect himself. The appellant was neither armed with any weapon when he came to the spot nor bring any thing from his house after the quarrel started. He just picked up the thorn stick which was lying at the spot. This clearly probabilises a case of self-defence. (Para 13)

       It is true that the appellant has not examined the Doctor who treated his injuries on his elbows. There is also no FIR in regard to appellants version of the incident. There is nothing to show that the Jail Doctor recorded the injuries. These factors would normally militate against acceptance of a plea of self defence. But the clean and uncontroverted evidence of PW-2 and the plausible explanation by the accused in his statement under Section 313 tilt the balance. The court must be objective and examine the matter on the facts and circumstances of each case to find out whether the situation was such as was likely to reasonably cause apprehension in the mind of the accused that death or grievous hurt would be caused to him if he did not act in self defence. His action in hitting the deceased on his head by taking a stick lying on the ground, was a reflex action to save himself from the attack by the deceased and his son. The appellant had not gone to the spot with any weapon. There was a lengthy quarrel and scuffle between the deceased and the appellant. The deceased and his wife and son were the root-cause for the quarrel as they put thorny sticks at the place where appellant was tethering his cattle. The evidence probabilises the defence version that the deceased and his son had hit the appellant with sticks on his head and the blows landed on his elbows when he raised his hands to protect his head, and that at that stage, the appellant picked up one of the thorny sticks which were lying at the spot and hit the deceased, to protect himself and not with the intention of killing him. The deceased died two days later on account of the resultant injury. The accused has also stated that he was detained in the police station on the night of 9th, but was shown to have been arrested only on 11th. It is not necessary to go into this aspect, as the preponderance of probabilities show that the act of the appellant was in all probability, in exercise of his right of private defence.(Para 16)