Ashok Kumar vs State of Tamil Nadu - 2006 Supreme(SC) 459

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2006 Supreme(SC) 459

Supreme Court Of India
Ashok Kumar - Appellant
Versus
State of Tamil Nadu - Respondent
Decided On : 05/05/2006

Important Points

Adverse inference for non-production of documents applies only if the court specifically ordered their production and the party suppressed them. Additionally, claiming the right of private defense of property requires proof of actual possession and trespass by the victim.

Subject

Criminal Law - Homicide

Act Referred

CRIMINAL TRIAL: .
EVIDENCE ACT: S.113(a)
INDIAN PENAL CODE: S.498(a)

Headnote

(A) Indian Penal Code - Sections 147, 148, 341, 447, 302 read with Sections 109 and 149 - Murder and rioting - Reliability of eye-witness testimony corroborated by medical evidence - Possession of land established by the act of ploughing - Testimonies of disinterested witnesses who advised a peaceful resolution through panchayat are deemed natural and credible.

(B) Law of Evidence - Adverse inference - Non-production of General Diary or Case Diary - An adverse inference against the prosecution for the non-production of police records can only be drawn if the Court had previously passed an order for their production and the prosecution intended to suppress material facts; in the absence of such an application or order, no adverse inference arises.

(C) Right of Private Defence - Defence of property - To claim the right of private defence in regard to property, the accused must prove they were in possession of the land and that the deceased trespassed upon it.

Facts of the case:
Accused persons and the deceased were involved in a dispute over the ownership of agricultural land. While the deceased was ploughing the land, the accused persons obstructed him and attacked him with sharp-edged weapons, leading to his death. Eye-witnesses witnessed the incident, reported it to the police, and testified in court. The trial court convicted the accused, and the appellate court upheld the conviction for the main assailants while acquitting others who were not present at the scene.

Findings of Court:
The court found the testimonies of the eye-witnesses to be natural and corroborated by medical evidence regarding the nature of injuries. The act of ploughing the land was sufficient evidence of the deceased's possession. The plea of private defence was rejected as the accused failed to prove their own possession of the land. The contention regarding the non-production of the General Diary was dismissed as no specific court order for its production had been issued during the trial.

Issues: Whether the failure to prove absolute legal title of the land affects the conviction for murder; whether the non-production of the General Diary warrants an adverse inference against the prosecution; and whether the accused were entitled to the right of private defence of property.

Ratio Decidendi: The court ruled that an adverse inference for the non-production of documents is not applicable unless the court had ordered the production of said documents and they were suppressed. Furthermore, the right of private defence of property requires the accused to establish possession and prove trespass by the deceased. Corroborated eye-witness testimony, especially from witnesses without a motive to falsely implicate, is sufficient for conviction.

Result: Appeals dismissed.

Legal Category Hierarchy

JUDGMENT

S.B. SINHA, J. :

The appellants herein, namely, Ashok Kumar, Sankar and Babu (in Criminal Appeal No. 1533 of 2004) and Selvakumar (in Criminal Appeal No. 1174 of 2005) (A-1, A-3, A-4 and A-2 respectively) along with theirfather Chakravarti Nayinar (A-5), mother Gunasekariammal (A-7) and uncle Rajan (A-6) stood trial for commission of offences under Sections 147, 148,341, 447, 302 read with Section 109 read with Section 149 of the Indian Penal Code (IPC), inter alia, for causing death of one Kumararaja.

The accused as also the deceased Kumararaja were residents of Ammeri Village, Taluk Gingee. They had their agricultural lands in the said village. The accused were claiming share of the land belonging to said Kumararaja. They had allegedly been causing disturbances in the possession of the lands belonging to Kumararaja as a result whereof some criminal cases were pending against A-5 and A-6. A-5 and A-6 with a view to attend the said criminal cases left the village at about 6.00 a.m. on 29.10.1993. They had allegedly instructed the appellants before leaving the village to see that the deceased did not plough the land in question and if despite warning he would do so he should be killed. At about 8.30 a.m., the deceased Kumararaja went to the said land and began ploughing the same which was objected to by the appellants herein. He reported the matter to Elanchziyan (PW-1) and Devabalan (PW-2) who advised him to convene a Panchayat so that the dispute between the parties may be settled, in response whereto the deceased allegedly told them that the matter need not be referred to Panchayat as the land belonged to him. He had, therefore, requested both the said PWs to accompany him to the land in question and ask the appellants not to cause any obstruction in his ploughing the land. They complied with the said request of the deceased. Further case of the prosecution is that as soon as the deceased entered into the disputed land and tried to plough, Gunasekariammal (A-7) allegedly brought four Koduval knives and handed over each one of them to the appellants and instigated them to kill the deceased whereupon they attacked the deceased. The deceased fell down. PW-1 and PW-2 cried out seeing the incident whereupon they were also threatened. Thereafter, they ran away with the weapons. PW-1 and PW-2 came near the deceased and found Kumararaja dead. The village came within the jurisdiction of Valathi Police Station. It was situated at a distance of about 8 kms. from the village. PW-1 walked all the way to the Police Station. He reached the police station at about 11.30a.m. At that time, Head Constable Ansar Sherif (PW-10) was present. He was although attached to Gingee Police Station, at the relevant point of time having been instructed by Inspector Mohan Doss Michael (PW-11), he was performing his duties at the Valathi Police Station. Head Constable (PW-

10) recorded the statement of PW-1. A copy of the First Information Report was sent to the Inspector (PW-11) who came to the scene of occurrence at about 12.30 p.m. In the meantime, PW-1 and PW-2 had also reached the place of occurrence. The statements of PW-1, PW-2 as also of those who were witnesses to Mahazar were recorded. Post-mortem examination on the dead body was conducted by Dr. Marimuthu (PW-9) on 30.10.1993. The following injuries were found on the dead body of the deceased:

(1)Incised wound (cut wound) across the top of the head, 15x4.0 indeep in brain, brain incised to about 1 cm depth, subdural haematoma about 100 cc on the left parietal area.

(2)Oblique incised wound in the midline of the head 8 x 2 on brain deep.

(3)Oblique incised wound on the right side parental area 17 x 2 x 1-1/2cm.

(4)Antere posterior incised wound on the left side involving 7x2x1 cm.

(5)Antere posterior incised would on the right side frontal area, 4x1x1cm.

(6)Cut injury with clear margin on the left hand running through distal ends of the 2,3,4 & 5th bones remov