Madras High Court
Perumayee vs State By on 20 March, 2008
Author: D.Murugesan
Bench: D.Murugesan, V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.03.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal No.865 of 2005 1. Perumayee W/o Govindaraj 2. Govindaraj S/o Sevi .. Appellants/A1 & A2 -vs- State by Inspector of Police Edappadi Police Station Salem District Crime No.122 of 2003 .. Respondent Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgment dated 2.9.2005 made in S.C.No.5 of 2004 on the file of the learned Principal Sessions Judge, Salem. For Appellants :: Mr.S.Shanmughavelayutham Senior Counsel for Mr.R.Nalliyappan For Respondent :: Mr.V.R.Balasubramanian Addl. Public Prosecutor JUDGMENT
D.MURUGESAN, J.
The question that arises in this criminal appeal is as to whether on the given facts and circumstances of the case, the appellants-accused have acted in their right of private defence while committing the murder of the deceased-Arunachalam.
2. Both the accused-appellants were put to face the trial in S.C.No.5 of 2004 on the file of the learned Principal Sessions Judge, Salem and the learned Judge by his judgment dated 2.9.2005 found the first accused guilty of the offence under Section 302 IPC and the second accused guilty of the offence under Section 302 r/w 34 IPC and sentenced each of them to undergo imprisonment for life and also to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for six months.
3. Though the conviction and sentence are put in issue in this appeal, Mr.S.Shanmughavelayutham, learned senior counsel appearing for the appellants would restrict the challenge by submitting that the appellants have acted only in their right of private defence and therefore they are entitled to the benefit of right of private defence.
4. For the disposal of the appeal, the following few facts are to be stated:-
A1 is the wife of A2. The deceased-Arunachalam is the husband of P.W.1-Selvi. The deceased had illicit intimacy with A1. On 4.2.2003 at about 7.30 p.m., the deceased went to the house of the accused to demand the repayment of loan from A1. While so, just in front of the house of the accused, A1 attacked the deceased with a thonnai (wooden log) on his right head, right shoulder and knee and A2 cut the deceased with a billhook near his left eye and due to the said attack, the deceased fell down and both the accused ran away from the scene of occurrence.
5. P.W.1, the wife of the deceased, on hearing the noise of her husband, the deceased, and A1, went to the place of occurrence along with her sister-in-law, P.W.2 and brother, P.W.3 and saw A1 attacking the deceased with a thonnai on his head by saying "was it not enough to have spoiled me and you wanted to spoil my daughter too". She also saw A1 attacking the deceased on his right shoulder and knee. Thereafter, A2, the husband of A1, also cut the deceased with a billhook near his left eye. When P.W.1 shouted, both the accused ran away from the scene of occurrence leaving the weapons at the scene. She saw the oozing of blood from her husband's head, nose and ear. Thereafter, she arranged a vehicle and took the injured firstly to the Government Hospital, Edappadi, where the doctor advised her to take the injured to the Government Mohan Kumaramangalam Medical College & Hospital, Salem. Thereafter, the injured was taken to the said hospital at 12.45 a.m., on 5.2.2003, where the casualty medical officer, P.W.9 treated him and issued the accident register, Ex.P-11. In spite of the treatment, the injured succumbed to the injuries around 1.40 a.m., on 5.2.2003.
6. On receipt of intimation from the hospital, P.W.11, the Head Constable attached to Edappadi Police Station, went to the hospital and recorded the complaint, Ex.P-1 from P.W.1 at 4.00 a.m. He handed over the complaint, Ex.P-1 and the death intimation, Ex.P-12 to P.W.10, the Sub Inspector of Police, who registered a case in Cr.No.122 of 2003 for the offence under Section 302 IPC. The printed First Information Report is Ex.P-13. He sent the First Information Report to the Court as well as forwarded the copies to the higher police officials.
7. P.W.13, the Inspector of Police, took up investigation and he proceeded to the scene of occurrence around 7.30 a.m., on 5.2.2003 and prepared an observation mahazar, Ex.P-5 and also drew a rough sketch, Ex.P-16 in the presence of P.W.4 and another witness. He also made arrangements to cause photographs of the scene place. He also recovered the wooden log, M.O.2, the billhook, M.O.1, bloodstained earth, M.O.3 and sample earth, M.O.4 from the scene place under the cover of mahazar, Ex.P-6 in the presence of the said witnesses. He thereafter went to Government Mohan Kumaramangalam Medical College & Hospital, Salem and conducted inquest on the body of the deceased in the presence of the panchayatdars and witnesses and prepared the inquest report, Ex.P-17. After causing photographs of the dead body, he sent a requisition at 1.00 p.m., through the Police Constable to the doctor for conducting post-mortem.
8. P.W.12, Professor of Forensic Medicine attached to Government Mohan Kumaramangalam Medical College and Hospital, commenced post-mortem on the body of the deceased at 1.15 p.m., on 5.2.2003 and he noted the following external injuries:-
"1. Obliquely placed laceration 7x2 cms bone deep over the right parieto occipital region of scalp.
2. Obliquely placed, spindle shaped stab wound with acute ends and clean cut margins 2x0.5 cms bone deep 1 cm below the outer end of left eye.
3. Both the eyelids on both the sides were found contused.
4. Vertically placed abrasion 4x1 cms over the back of upper 1/3rd of right forearm.
5. Abrasion 3x2 cms over the front of right knee.
6. Abrasion 3x2 cms over the front of left knee.
7. Transversely placed abrasion 4x1 cms over the outer aspect of upper 1/3rd of left upper arm.
8. Abrasion 5x1 cms over the outer aspect of right shoulder.
9. Abrasion 5x1 cms over the outer aspect of left shoulder."
He issued the post-mortem certificate, Ex.P-15 with his opinion that the deceased would appear to have died of shock and haemorrhage due to head injuries.
9. P.W.13, continuing with his investigation, examined P.W.4 and other witnesses and recorded their statements. On the same day, at about 5.00 p.m, he arrested both the accused in front of Government Hospital, Edappadi in Edappadi-Salem road junction in the presence of the said witnesses. He recorded the voluntary confessional statements of both the accused. He brought the accused to the police station at about 6.30 p.m., and kept them in lock up. He recovered the bloodstained lungi, M.O.5 worn by the deceased from the Head Constable under Form-95 and sent it to the Court. He remanded both the accused to judicial custody at about 8.30 p.m. He examined the other witnesses between 6.2.2003 and 9.2.2003 and recorded their statements. On the basis of the requisition given under Ex.P-18, he received the chemical analyst's report, Ex.P-20 and the serologist's report, Ex.P-21. He also gave requisition to the Magistrate for recording the statements of P.Ws.1 & 2 under Section 164 Cr.P.C., and accordingly, their statements were recorded on 21.3.2003. After completing investigation and after getting legal opinion, he laid the charge sheet against both the accused on 21.5.2003 for the offence under Section 302 IPC before the Court.
10. In order to prove the charges against the accused, the prosecution examined 13 witnesses, marked 21 exhibits and produced 5 material objects.
11. When the accused were questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against each of them, they denied each and every incriminating material as false. No witness was examined and no document was marked on the side of the defence. The learned trial Judge, however, found the accused guilty, convicted and sentenced them for the offence as stated earlier.
12. Since Mr.S.Shanmughavelayutham, learned senior counsel for the appellants had only advanced his argument as to the right of private defence, we propose to discuss the evidence only with reference to the above submission.
13. (a) According to the learned senior counsel, even P.W.1, the wife of the deceased, in her complaint, Ex.P-1 had stated that the deceased, her husband, had illicit intimacy with A1-Perumayee. Since Perumayee was having a grown up girl, P.W.1 had warned the deceased number of times not to go to the house of A1. He would also submit that even in the inquest report, Ex.P-17, in columns xv & ix, it is referred that both the deceased and A1 had illicit intimacy. P.W.1 also, in her evidence, has stated that there was an illicit intimacy between her husband and A1 and she has also warned the deceased not to go to the house of A1 as she has a grown up girl. According to the learned senior counsel, even according to the prosecution, both the deceased and A1 had illicit intimacy and the deceased was warned by his wife, P.W.1, not to go to the house of the accused. According to the learned senior counsel, in spite of such warning, the deceased had gone to the house of the accused on the evening of the fateful day i.e., on 4.2.2003.
(b) Secondly, the learned senior counsel would submit that even according to P.W.1 in her complaint, when P.W.1 along with P.Ws.2 & 3 went to the scene of occurrence on hearing the noise of her husband and A1, she heard A1 saying "was it not enough to have spoiled me and you wanted to spoil my daughter too". Only by stating so, A1 firstly attacked the deceased with a wooden log and thereafter A2 cut the deceased with the billhook. Again in Ex.P-17, the inquest report, it is also stated that when the deceased made attempts to molest the daughter of the accused, they have attacked the deceased. The very same version is also spoken to by P.W.1 before the Court in her evidence. In fact P.W.2, the sister-in-law of P.W.1 and the sister of the deceased, has also stated for having heard such words from the mouth of A1 before both the accused attacked the deceased. The above evidence is also corroborated by P.W.3, the brother of P.W.1. Hence the learned senior counsel would submit that even according to the prosecution case, both the accused, in their right of private defence and in order to prevent the deceased from molesting their daughter, have attacked the deceased and therefore they are entitled to the right of private defence. In support of the said submission, the learned senior counsel would rely upon the following judgments:-
(i) Vishwanath v. The State of Uttar Pradesh (AIR 1960 SC 67).
(ii) Lakshmanan and others v. Lakshmanan and another (1964 MLJ (Crl.) 47).
(iii) Logammal alias Loga and another v. State by Inspector of Police, Vaniambadi Circle (1987 L.W.(Crl.) 473).
(c) Lastly, the learned senior counsel would submit that in any case the daughter of the accused by name Vasantha, who was present at the time of occurrence and on whom the deceased attempted to commit molestation, though was examined and her statement was recorded by the Investigating Officer, strangely, she was withheld by the prosecution. He would submit that had the said Vasantha been examined, she would have come with a true version as to the act on the part of the deceased in molesting her and only in view of such act of the deceased, the accused, in order to save their daughter, have attacked the deceased. The learned senior counsel would submit that she, being a material witness, ought to have been examined and the withholding of the said witness is bad. He would rely upon the judgment of the Supreme Court in Narain and others v. The State of Punjab (1959 Supreme Court Journal 447) in support of his contention.
14. Mr.V.R.Balasubramanian, learned Additional Public Prosecutor for the respondent would, however, submit that even going by the evidence of the prosecution, it is not a case of private defence as the accused have exceeded their right of private defence when there is no threat on the accused by the deceased and an attempt of molestation was made only on their daughter and that cannot be a ground for the accused to attack the deceased and that too with a wooden log and billhook and further on the vital part of the body namely, the head.
15. From the above submissions, the question to be decided is as to whether the accused-appellants are entitled to their right of private defence. From the evidence let in on behalf of the prosecution through P.Ws.1,2 & 3 as well as Ex.P-1, the complaint given by P.W.1 and Ex.P-17, the inquest report, the following facts emerge. The deceased and A1 had illicit intimacy. On coming to know of such illicit intimacy, P.W.1, the wife of the deceased, had warned him not to go to the house of the accused. In fact she had gone to the extent of cautioning the deceased that he should not go to the house of the accused as the accused have a grown up girl. In spite of such cautioning, the deceased, on the evening of 4.2.2003, had gone to the house of the accused on the pretext of collecting the loan paid to A1. It is also seen that P.Ws.1 to 3 are the eye-witnesses for having seen the accused attacking the deceased with the wooden log and billhook. Their evidence is consistent insofar as the manner in which the occurrence had taken place. According to the consistent evidence, the witnesses saw A1 attacking the deceased by saying "was it not enough to have spoiled me and you wanted to spoil my daughter too". On coming to know that the deceased had made attempt to molest his daughter, A2 had picked the billhook and cut the deceased. On hearing the alarm of P.Ws.1 to 3, the accused fled from the scene of occurrence after leaving the weapons at the site.
16. Chapter IV of the Indian Penal Code deals with general exceptions. For consideration of the issue involved, Sections 96, 97, 99 & 100 IPC are referable and they read as follows:-
"96. Things done in private defence.--Nothing is an offence which is done in the exercise of the right of defence.
97. Right of private defence of the body and of property.--Every person has a right, subject to the restrictions contained in Section 99, to defend--
First--His own body, and the body of any other person, against any offence affecting the human body;
Secondly--The property, whether movable or immovable of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
99. Acts against which there is no right of private defence.--There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to the protection of the pubic authorities.
Extent to which the right may be exercised.--The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation 1.--A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.
Explanation 2.--A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.
100. When the right of private defence of the body extends to causing death.--The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:--
First -- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly -- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly -- An assault with the intention of committing rape;
Fourthly -- An assault with the intention of gratifying unnatural lust;
Fifthly -- An assault with the intention of kidnapping or abducting;
Sixthly -- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."
17. In terms of Section 96 IPC, nothing is an offence which is done in the exercise of the right of private defence. In terms of Section 97 IPC, subject to the restrictions contained in Section 99, every person has a right to defend his own body and the body of any other person against any offence affecting the human body. Right of private defence is not restricted only where a person acts to defend his own body but is also extended to defend the body of any other person when an offence is sought to be committed either on his own body or on the body of any other person, as the case may be. The contention of the learned senior counsel for the accused-appellants is that such a right of private defence is also extended in terms of the third clause of Section 100 IPC even when an assault with the intention of committing rape is made. Per contra, it is the contention of the learned Additional Public Prosecutor that the right of private defence is not available when the offence is causing death.
18. A reading of Section 102 IPC shows, the actual commission of the offence is not necessary as the defence commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence might not have been committed. The only restriction would be that the reasonable apprehension must not exceed the legitimate purpose and the exercise of power must never be vindictive or malicious. It is the contention of the learned Additional Public Prosecutor that the provisions of Section 100 IPC would be available only to a person who apprehends any attack at the hands of the deceased. In our view, the said submission is on misreading of the provisions relating to the right of private defence. While the third clause of Section 100 is pleaded for self defence, the provision must be given its full effect according to its plain meaning. Section 100 IPC contemplates that the right of private defence of the body extends under the restrictions mentioned in the preceding section, which would mean the restriction under Section 99 dealing with the acts against which there is no right of private defence. On the contrary, the words "the right of private defence of the body extends" would mean that the provision is also applicable in cases covered under Section 97 as well. To find out as to the availability of the defence, both the Sections 97 and 100 must be read together and not in isolation. If so read, a private defence by defending not only his own body but also the body of any other person as well against any offence affecting the human body to which an accused is entitled is also extended to him to the voluntary causing of death of an assailant if the offence which occasions the exercise of the right by an assault with the intention to commit rape. Even in case of a mere reasonable apprehension of danger to the body, such right is available to the accused and the third clause of Section 100 IPC could be extended to attempt to molestation as well.
19. Right of private defence has to be established when the accused persons were under such grave apprehension about the safety of their life and that retaliation to the extent done was absolutely necessary. The right of private defence cannot be based on surmises and speculations and the entire incident must be examined with care and viewed with proper perspective and the above burden is on the accused.
20. In Lakshmanan and others case reported in 1964 MLJ (Crl.) 47 (supra), the Supreme Court had considered the right of self defence under Section 100(1) & (2) and observed as follows:-
"The principle behind the rule of self-defence under the Penal Code is that the law does not require a person to behave like a coward and run away if he is attacked. The law permits him to retaliate in defence and if in such a conflict he happens to kill such killing is justifiable......In such cases it is not possible to lay down any hard and fast rule as to the quantum of force that is legally permissible. Where a person is attacked he is not bound to regulate or modulate his defence step by step according to the attacks of the opponent. Each case has to be considered on its own peculiar facts.
It is no doubt true that the burden of proving the existence of circumstances bringing the case within the Exception is on the accused. But it is not necessary that he must prove beyond reasonable doubt the existence of such circumstances and the accused need only make out a prima facie case. If on a review of the entire evidence the Court finds that the plea of the accused is a plausible theory and the Court entertains a doubt as to the guilt of the accused he will be entitled to the benefit of the doubt even though he might not have fully established his plea of self-defence."
21. In Vishwanath's case reported in AIR 1960 SC 67 (supra), a dispute arose between the husband and wife, and the wife living with her father and brother, and the husband suspected her fidelity and therefore on the fateful day there were some quarrels between her husband and herself, wherein her father and brother were also involved. When the husband dragged his wife even while she caught hold of the door and there was a tug of war between herself and her husband and at that time, the brother of the wife came out with a knife and stabbed the said Gopal and the knife penetrated into him and the said Gopal died. While the plea of private defence was raised, the Supreme Court has observed that when the appellant's sister was being abducted even though by her husband, there was an assault on her and she was compelled by force to go away from her father's place, the appellant would have the right of private defence of the body of his sister against the assault with the intention of abducting her by force and that right would extend to the causing of the death. The Supreme Court had also taken note of the fact that there was only one blow with the knife.
22. As has been held by the Supreme Court in Vishwanath's case, even when the sister of the appellant was forcibly taken from the house and that too by her husband, the benefit of right of private defence was given to the appellant.
23. A Division Bench of this Court in the judgment in Logammal alias Loga case reported in 1987 L.W.(Crl.) 473 (supra), had an occasion to consider a more or less similar case. The deceased in that case came to his house in a drunken mood and a wordy quarrel ensued between him and the accused-Kannammal, his wife. As the accused found fault with the conduct of the deceased, her husband, for having concubine, the deceased got angered and beat the accused and thereafter he made overtures towards his daughter Logammal alias Loga, the juvenile accused and also invited her to take bed and have sexual intercourse with him. In these circumstances, the wife of the deceased attacked and strangulated him and the daughter of the deceased held his legs. After the deceased died, the accused tied a rope around the neck of the deceased and hanged his body from the roof of the cattle shed. While considering the above case, the Division Bench had observed that "it is very difficult to visualize the degree of the distressed condition in which the accused persons were placed, which made them attack the deceased in that manner. It would be uncharitable to say that the accused should have waited till the deceased actually lay on the juvenile accused Logammal and then only attacked him. Would any mother tolerate the sight of her daughter being subjected to forcible sexual assault by no less a person than the father himself...When a woman sees her daughter being subjected to an incestuous sexual outrage in her very presence by any one, even if that be her husband, it is common knowledge that her blood would boil and she would spring on the assailant like a panther and suck out his blood even at the risk of her life." Having observed so, the Division Bench granted the benefit of the third clause of Section 100 IPC to the accused and ultimately acquitted them.
24. In the above background of law, the submission as to whether the accused-appellants have acted in their right of private defence shall be considered. From the evidence in this case it could be seen that the deceased had not only illicit intimacy with A1, but in spite of the warning or caution given by his wife, he had gone to the house of the accused and had made attempts to molest their daughter. It is to be seen that according to the complaint-Ex.P-1, when P.W.1 along with P.Ws.2 & 3 went to the scene of occurrence on hearing the noise of her husband and A1, she heard A1 saying "was it not enough to have spoiled me and you wanted to spoil my daughter too". Only by stating so, A1 firstly attacked the deceased with a wooden log and thereafter A2 cut the deceased with the billhook. The very same version is also spoken to by P.W.1 before the Court. In fact P.W.2, the sister-in-law of P.W.1 and the sister of the deceased, has also stated for having heard such words from the mouth of A1 before both the accused attacked the deceased. The above evidence of P.Ws.1 & 2 is also corroborated by P.W.3, the brother of P.W.1. The said fact of illicit intimacy between A1 and the deceased and the warning given by P.W.1, the wife of the deceased, has also been referred to in the inquest report-Ex.P-17 in columns xv and ix. The accused have also taken the plea of the alleged attempt on the part of the deceased to molest their daughter in their confessional statements. It is to be seen that the deceased, a married man, had already illicit intimacy with A1 and there was every reasonable apprehension on the part of both A1 and A2 that he may not only molest their grown up girl but also will make an attempt to rape her. In this regard, the statement of the girl Vasantha recorded under Section 161 Cr.P.C., is also referable wherein it is stated that the deceased had made an attempt to rape her. Adding to the above, the deceased was also drunk at that time. The said version is also corroborated in the inquest report, Ex.P-17. Once such facts are established by the accused and that too through the evidence of the prosecution witnesses themselves, in our opinion, the accused in order to save their daughter from molestation have committed the offence and therefore they are entitled to the right of private defence.
25. As far as the submission of the learned Additional Public Prosecutor that the accused have exceeded their right of private defence is concerned, in our considered view, A1 had only caused injuries on the head and shoulder of the deceased with a thonnai normally used by the villagers for their day to day affairs. On the given facts and circumstances of the case, the weapon used by A1 i.e,, thonnai, a stick commonly used by villagers while cooking, cannot be considered to be essentially a dangerous weapon. Equally when A2, the father of the girl by name Vasantha, came to know that the deceased had made attempts to molest her and that too in drunken mood, had picked up the billhook and cut the deceased near the left eye. In matters like this, the Court must also take note of the fact that it is not the accused who had gone to the place of the deceased and attacked him and on the other hand, the deceased came in a drunken mood and started not only quarrelling with the accused, especially with A1, but also had gone to the extent of making attempts to molest the grown up girl of the accused and in such event A2 is also entitled to the right of private defence.
26. In this context, it would be also relevant to note the confessional statement of A2 taking the plea of right of private defence in view of the attempt on the part of the deceased to molest his daughter. The question as to whether the admission in the confessional statement can be used in favour of the accused came up for consideration before a Division Bench of this Court in Mottai Thevan v. State (1951 MWN (Crl.) 274) and in the said judgment, the Court has taken the view that Section 25 of the Evidence Act does not prohibit the use of the confessional statement made by the accused in favour of them. In view of the above, the confessional statements of the accused so far as it relate to the fact that only when the deceased made attempts to molest their daughter, they have attacked in self-defence can be brought to their rescue. In these circumstances, we are not inclined to accept the submission of the learned Additional Public Prosecutor that the accused have exceeded their right of private defence.
27. One more aspect to be noted is that during the course of investigation, a statement under Section 161 Cr.P.C., was also recorded by the Investigating Officer from Vasantha, the daughter of the accused. In the said statement, she has stated that the deceased made an attempt to molest her and in order to escape, she ran away from the place. According to the learned senior counsel for the appellants, the said Vasantha is a material witness and if she had been examined, she would have deposed as to the attempt on the part of the deceased to molest her. The prosecution, for the reasons best known to it, withheld the said witness. As far as this case is concerned, Vasantha being the daughter of the accused is a material witness inasmuch as she would be in a position to speak about the alleged attempt of molestation on her by the deceased. The failure of the prosecution to examine the said material witness, in our considered view, is not a mere irregularity or laxity, but is founded on common sense and humanity. The entitlement of the accused to disprove the allegations/charges also includes the right of expectation from the prosecution to place all material witnesses. In the absence of examination of such material witness, the right of the accused is seriously prejudiced. In this context the judgment of the Supreme Court in Narain and others reported in 1959 Supreme Court Journal 447 (supra) can be usefully referred to, wherein the Supreme Court has observed as follows:-
"If a material witness has been deliberately or unfairly kept back then a serious reflection is cast on the propriety of the trial itself and the validity of the conviction resulting from it may be open to challenge. The test whether a witness is material is not whether he would have given evidence in support of the defence. The test is whether he is a witness "essential to the unfolding of the narrative on which the prosecution is based". It is not however that the prosecution is bound to call all witnesses who may have seen the occurrence and so duplicate the evidence. But apart from this, the prosecution should call all material witnesses."
In the said judgment, the Supreme Court has also quoted the Privy Council judgment in Stephen Seneviratne v. The King (AIR 1936 P.C. 289), wherein it has been held that "the examination of such witness is essential to the unfolding of the narrative on which the prosecution is based". In fact the Supreme Court has further observed that "whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied. It is not, however, that the prosecution is bound to call all witnesses who may have seen the occurrence and so duplicate the evidence. But apart from this, the prosecution should call all material witnesses". Hence the failure on the part of the prosecution to examine the material witness would affect the prosecution case and in that context, the accused is entitled to take the benefit of the statement made under Section 161 Cr.P.C., by the girl Vasantha, wherein she has stated that the deceased had made an attempt to molest her at the time of occurrence and she ran away from the place of occurrence to save herself.
28. For all the above reasons, we are of the considered view that both the accused-appellants have acted only in their right of private defence in order to save their daughter-Vasantha from molestation at the hands of the deceased and consequently they are entitled to the benefit of the right of private defence under the first clause of Section 97 and the third clause of Section 100 IPC. Accordingly, the judgment of the learned Principal Sessions Judge, Salem made in S.C.No.5 of 2004 is set aside and the appellants-accused are acquitted of the charges. Bail bonds executed by the appellants shall stand terminated and the fine amount is ordered to be refunded.
Index : yes (D.M.,J.) (V.P.K.,J.)
Internet: yes 20.03.2008
ss
To
1. The Principal Sessions Judge, Salem
2. The Judicial Magistrate No.II, Sankari
3. -do- thru' the Chief Judicial Magistrate, Salem
4. The Public Prosecutor, High Court, Madras
5. The District Collector, Salem
6. The Director General of Police, Chennai
7. The Inspector of Police,
Edappadi Police Station, Salem District
D.MURUGESAN, J.
&
V.PERIYA KARUPPIAH, J.
Judgment in
Crl.A.No.865 of 2005
20.03.2008