2006 Supreme(SC) 922

2006(8) Supreme 519
SUPREME COURT OF INDIA
(From Madras High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
Karuppusamy & Anr. - Appellants
versus
State of Tamil Nadu - Respondent
Criminal Appeal No. 1018/2006
(Arising out of SLP (Crl.) No. 6078/2005)
Decided on 29-9-2006
Counsel for the Parties :
For the Appellants : A. Radhakrishnan, Anupam Mishra, Jenis and V.J. Francis, Advocates.
For the Respondent : R. Shunmugasundaram, Sr. Advocate, V.G. Pragasam and S. Vallinayagam, Advocates.

Headnote:Indian Penal Code, 1860 - Section 302/34 - Appellants accused Nos. 2 and 3 convicted under where as accused No. 1 was acquitted and accused No. 4 was convicted u/s 324 IPC by trial Court - High Court upheld conviction - Appeal - Accused had raised plea of self defence - Parties were members of a joint family and had dispute over division of property - Parties had gone to village Administrative Officer and deceased and his wife PW2 accompanied parties as they were closely related to PW1 - Deceased, PWs 1 and 2 were on bus stand when accused armed with firewood log assaulted deceased - Victim was taken to hospital by PWs 1 and 2 where he died - Defence raised was that as deceased attempted to stab accused No. 4 with a knife, he picked up stick and assaulted deceased - Trial Court having acquitted A1 and convicted A4 u/s 324 IPC, discarded prosecution case that appellant came in a body with intention to kill deceased - Deceased had nothing to do with property in dispute though he might be siding with PW1 - Knife was found on spot and no case of prosecution if any of accused was armed with knife - As to who held the knife was not investigated - Plea of self defence should have been considered on its own merits and High Court could not have refused to consider the defence - Appellants were liable to be held guilty u/s 304 Part II IPC and sentenced to 10 years imprisonment.

       Held : What is, however, is of some significance is that the learned Trial Judge acquitted Accused No.1 and convicted Accused No.4 only under Section 324 of the Indian Penal Code. He, thus, had discarded the case of the prosecution that Appellants had come in a body to the bus stop with an intention to kill the deceased.(Para 11)

       The parties had gone to the Village Administrative Officer. The deceased and his wife, P.W.2, accompanied the parties. Their close relation with P.W.1 has been noticed by us. It is, thus, not very unlikely that the parties had picked up a quarrel at the bus stop as they might not have agreed to the suggestion of P.W.9.(Para 12)

       It is wholly unlikely that the Accused No.1 wanted to murder the deceased owing to the property dispute. The deceased had nothing to do with the property in dispute, although that he might have been siding with P.W.1. The High Court did not believe the story on the premise that the letter of Appellant dated 8.7.1994 was issued by way of after-thought. P.W.15, however, accepted that he had received the same. It was for him to show when he received it. We fail to see any reason as to why the prosecution did not bring on record the material document in relation to the receipt of the said document.(Para 13)

       We have noticed hereinbefore that P.W.3 accepted that a knife was seen at the place of occurrence. Who had held the knife has not been explained by the prosecution. Admittedly, none of the accused was having any knife in their hands. They were, allegedly, armed with sticks.(Para 19)

       Whether they had assaulted the deceased or not is one thing, but, the question as to whether they had intention to kill him is another. They had raised a plea of self-defence. The same should have been considered on its own merit. It could not have been rejected on the premise that Exhibit D.1 had not been proved. The receipt of Exhibit D.1 is not in dispute. The fact that it was sent by post is also not in dispute. It was received by the Investigating Officer. It was for the Investigating Officer to show as to when it had been dispatched. In our opinion, the High Court could not have refused to consider the defence raised by the accused, particularly, when the theory that all the accused persons came at the bus stop with an intention to kill the deceased had not been accepted by the trial court.(Para 20)

       Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that Appellants should not have been found guilty for commission of an offence under Section 302 of the Indian Penal Code. We are not oblivious of the fact that both the accused gave one blow each. The blow given by Appellant No. 1 although was on a vital part, but it must also be borne in mind that when a person looses his sense, he may act violently. That by itself may not be a ground to reject the plea of self-defence. Recently in Kailash vs. State of M.P. in Criminal Appeal No. 238 of 2006, disposed of by this Court on this date, it was opined that a holistic view of the matter is required to be taken.(Para 21)

       We, therefore, are of the opinion that Appellants are guilty of commission of an offence under Section 304 Part II and not under Section 302 of the Indian Penal Code. The judgment of conviction is altered accordingly. They are sentenced to undergo 10 years Rigorous Imprisonment.(Para 22)