IMPORTANT POINTS
The part of the body on which the blow was dealt, the nature of the injury and the type of the weapon used will not always be determinative as to whether an accused is guilty of murder or culpable homicide not amounting to murder. The events which precede the incident will also have a bearing on the issue whether the act by which death was caused was done with an intention of causing death or knowledge that it is likely to cause death but without intention to cause death.
2. The injuries received by accused, the imminence of threat to his safety, injuries caused by accused and whether accused had time to have recourse to public authorities are all relevant factors to be considered while determining right to private defence.

Headnote:Indian Penal Code,1860-Sections 147, 148,341,302 read with Section 109 and Section 149-Prosecution of accused persons five in number for assaulting one person and causing death of another by stabbing him-Conviction by Trial Court-Appeal-Acquittal of all accused persons by High Court holding that since A2 had stabbed the deceased in exercise of his right of private defence , there was no question of other accused instigating him to stab the deceased. -Appeals against acquittal-Evidence on record that accused had gone to the rice mill of deceased- As per certificate issued by PW-14 Dr. PW-1 had received simple injuries- To establish right of private defence, accused had not laid any evidence- Evidence on record not probabalised the defence version that burning of properties of accused was done before A2 stabbed deceased- It is true that A3 received injury during the course of incident- But, according to PW-16 Dr. it was a simple injury- Its non-explanation by prosecution, in the facts of this case, does not have any adverse impact on the prosecution case- The fact that accused had gone to the rice mill of deceased was a circumstance which needed to be taken into account while considering the plea of right of private defence and it made an irreparable dent in said plea- High Court was, hence, clearly in error in drawing an inference that A2 stabbed deceased in exercise of his right of private defence- Held not possible to concur with said finding of High Court- However so far as A1, A3, A4 and A5 were concerned, High Court was held right in acquitting them- Appeals partly allowed (Paras 17, 18, 25)
        Right of private defence –Scope and ambit of-Right of private defence cannot be weighed in a golden scale and even in absence of physical injury, in a given case, such a right may be upheld by the court provided there is reasonable apprehension to life or reasonable apprehension of a grievous hurt to a person- It is well settled that onus of proof on the accused as to exercise of right of private defence is not as heavy as on the prosecution to prove guilt of the accused and it is sufficient for him to prove the defence on the touchstone of preponderance of probabilities- Whether a person legitimately acted in exercise of his right of private defence is a question of fact to be determined on the facts and circumstances of each case- In a given case it is open to the Court to consider such a plea even if the accused has not taken it, but the surrounding circumstances establish that it was available to him- The burden is on the accused to establish his plea-The burden is discharged by showing preponderance of probabilities in favour of that plea- The injuries received by accused, the imminence of threat to his safety, injuries caused by accused and whether accused had time to have recourse to public authorities are all relevant factors to be considered. (Para 14)
        Criminal Trial- Murder or culpable homicide not amounting to murder- Instantly deceased received a single stab injury- Dr. conducting postmortem opined that injury had gone inside left chest through the lungs into the heart- Undoubtedly, injury was serious and on a vital part of the body, but it was caused by a penknife, which was in key bunch of the accused- The accused and the deceased belonged to different political parties- Admittedly, there was enmity between the two sides- There had been an altercation between deceased and PW-1 on the one hand and accused on the other hand- The accused had then gone to the rice mill of the deceased-There again, there was an altercation between two sides- The circumstances on record clearly indicated that A2 stabbed the deceased without premeditation, in a sudden fight in the heat of passion- A2 knew that the act by which death was caused was likely to cause death he had no intention to cause death-Fit case for conviction of A2 for the offence of culpable homicide not amounting to murder under Section 304 Part II of the IPC (Para 24)
       Facts of the Case :
        Accused persons five in number were prosecuted herein in the instant case for assaulting one person and causing death of another by stabbing him. Trial Court convicted accused persons .On Appeal, High Court acquitted all accused persons holding that since A2 had stabbed the deceased in exercise of his right of private defence , there was no question of other accused instigating him to stab the deceased.
        B. Present Appeals have been preferred against said order of acquittal passed by High Court.
       Findings of the Court :
        A. Evidence on record showed that accused had gone to the rice mill of deceased- As per certificate issued by PW-14 Dr. PW-1 had received simple injuries. To establish right of private defence, accused had not laid any evidence. Evidence on recordnot probabalised the defence version that burning of properties of accused was done before A2 stabbed deceased.
        B. It is true that A3 received injury during the course of incident. But, according to PW-16 Dr. it was a simple injury. Its non-explanation by prosecution, in the facts of this case, did not have any adverse impact on the prosecution case. The fact that accused had gone to the rice mill of deceased was a circumstance which needed to be taken into account while considering the plea of right of private defence and it made an irreparable dent in said plea. High Court was, hence, clearly in error in drawing an inference that A2 stabbed deceased in exercise of his right of private defence. Held not possible to concur with said finding of High Court. However So far as A1, A3, A4 and A5 were concerned, High Court was held right in acquitting them. Appeals were partly allowed.

JUDGMENT

(Smt.) Ranjana Prakash Desai, J.

1. These two appeals, by special leave, can be disposed of by a common judgment as they challenge the judgment and order dated 14/3/2005 passed by the Madras High Court in Criminal Appeal No.130 of 1997 filed by Swami Kannu, Basavaraj, Kumaran, Kanagaraj and Gnanapazham (original accused 1 to 5 respectively) who are hereinafter referred to as “A1” to “A5” respectively for convenience.

2. In Sessions Case No. 151 of 1993, A1 to A5 were charged for offence punishable under Section 147 of the IPC. A2 and A4 were charged for offence punishable under Section 148 of the IPC. A2 to A5 were charged for offence punishable under Section 341 of the IPC. A1 was charged for offence punishable under Section 149 read with Section 341, offence punishable under Section 109 read with section 324 and offence punishable under Section 109 read with Section 302 of the IPC. A4 was charged for offence punishable under Section 324 of the IPC. A2, A3 and A5 were charged for offence punishable under Section 149 read with Section 324 of the IPC. A2, A3 and A5 were charged for offence punishable under Section 323 of the IPC. A2 was charged for offence punishable under Section 302 of the IPC. A3, A4 and A5 were charged for offence punishable under Section 149 read with Section 302 of the IPC.

3. The case of the prosecution needs to be narrated in brief.

4. A2 to A5 are the sons of A1. PW-1 Pandurangan is the younger brother of deceased Ranganathan, who was a former Member of Legislative Assembly. He was a member of ADMK political party. He used to, inter alia, run a rice mill. A1 to A5 were residing at Dharmapuri while the deceased was a resident of Madhikonpalayam Village. The relations between the accused and the deceased were strained.

5. On 11/11/1992 at about 7.30 p.m. PW-1 Pandurangan, PW-4 Jabbar and one Nanjappan were sitting near a bus stop at Dharmapuri. The deceased was also present. On seeing A2, the deceased asked PW-1 to go and collect donation for organizing a meeting at Dharmapuri in connection with the visit of a Minister. A2 refused to pay the amount and made some disparaging remarks about the deceased. The deceased got annoyed and told him that if he is not willing to pay donation he may not pay but he should not make such comments. A2 persisted in making comments and told the deceased that he will finish him one day. PW-1 intervened in the quarrel. Thereafter, the deceased and PW-1 got into a car and went to Madhikonpalayam. They alighted near the rice mill. They were discussing about the ensuing marriage of PW-1’s son. At about 1.15 p.m. PW-1 came out of the rice mill and saw A1 to A5 coming from the east. On seeing PW-1, A2 to A5 held his hands and A1 instigated others to kill him. A4 beat PW-1 with a cycle chain on his head, back of chest and left side of the wrist. The others beat him with hands. PW-1 raised alarm. The deceased came out of the rice mill and intervened. A1 instigated his sons to kill him. Thereafter A3 to A5 held the hands of the deceased and A2 stabbed the deceased on the left side of his chest. The deceased fell down and all the accused ran away. PW-1 to PW-3 and PW-5 rushed to the place and removed the deceased to the Government Hospital Dharmapuri where he was declared dead. PW-1 then went to Dharmapuri Police Station and lodged his FIR (Ex.P-1). A2 was arrested on 19/11/1992. A3 was arrested on 20/11/1992. The other accused surrendered. After completion of the investigation the accused were charged as aforesaid.

6. In support of its case, the prosecution examined as many as 21 witnesses. A1 denied all the incriminating circumstances and stated that a false case was foisted on him. Version of A2 as evident from his statement under Section 313 of the Code of Criminal Procedure (for short, “the Code”), is important and needs to be stated. He admitted that there was a dispute between his family and the family of the deceased. The deceased and A1 belonged to different polit

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2011 Supreme(SC) 1104

Cases Referred (4)