Madras High Court
Karuppuswami vs State Rep By on 20 April, 2011
Bench: S.Rajeswaran, G.M. Akbar Ali
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/04/2011 CORAM THE HON'BLE MR.JUSTICE S.RAJESWARAN and THE HON'BLE MR.JUSTICE G.M. AKBAR ALI Criminal Appeal (MD) No.358 of 2004 1. Karuppuswami 2. Veerappan 3. Rajendran 4. Kaliappan 5. Sangappan 6. Ramu alias Ramasami ... Appellants vs State rep by The Inspector of Police Palaviduthi Police Station Karur District (Cr.No.25 of 2002) ... Respondent Appeal filed against the judgement passed by the learned Sessions Judge, Karur in S.C.No.68 of 2003 dated 17.12.2003. !For appellants ... Mr. AR.L. Sundaresan Senior Counsel for M/s A.L. Gandhimathi ^For respondent ... Mr.Issac Manuel APP :JUDGEMENT
(Judgment of this Court was delivered by G.M. AKBAR ALI,J.) The appellants 1 to 6 are convicted for the offence punishable under Sec.147 IPC and sentenced to undergo R.I for one year and also convicted for the offence punishable under Sec.148 IPC and sentenced to undergo R.I for two years. The appellants 4 to 6 are convicted for the offence punishable under Sec.323 IPC and sentenced to undergo one year R.I. The appellants 1 to 3 are convicted for the offence under Sec.302 IPC and the appellants 4 to 6 are convicted for the offence under Sec.302 read with 149 IPC and the appellants 1 to 6 are sentenced to undergo life imprisonment and pay a fine of Rs.1,000/- each, in default, the appellants 1 to 6 are sentenced to undergo 2 years R.I. The sentences imposed on the appellants 1 to 6 were ordered to run concurrently.
The case of the prosecution is as follows:
2. The appellants are A.1 to A.6. The deceased, Ponna Gounder, Veerappan and Sangappan, the 2nd and the 5th appellants herein, are brothers.
Karuppusamy, the 1st appellant, is the son of 2nd appellant. The appellants 3 and 4 are the brothers-in-law of the 1st appellant. The 6th appellant is the farm hand of the 5th appellant. P.W.1, Vellaichamy and P.W.2, Nallusamy are the sons of the deceased Ponna Gounder. P.W.4, Karuppayee is the wife of the deceased. P.W.3, Nagammal is the wife of P.W.1. The deceased and his two brothers have a common share in the well situated in their land at Arasa Goundanur village. The deceased Ponna Gounder and the 2nd appellant Veerappan were having separate electric motors and Electricity connections for irrigation of their agricultural lands. Regarding the irrigation rights among the brothers, a civil case is pending. There used to be frequent quarrels between the two families.
3. On 25.5.2002, around 8.00 p.m, P.W.1 Vellaichamy switched on his electric motor and was irrigating his lands. The appellants 1 to 5 came to the common well and the 1st appellant switched on his motor, but it did not work. The 1st appellant blamed P.W.1, suspecting some foul play done by P.W.1. The appellants quarrelled with P.W.1 and there was a commotion.
4. The 6th appellant and the women folk of the family of the 2nd appellant came to the place of occurrence with iron rods and sticks. P.Ws.2 to 4 along with the deceased Ponna Gounder also came to the spot. The 1st appellant assaulted the deceased with iron rod on his head; the 2nd appellant had also assaulted on his right cheek; the 3rd appellant assaulted the deceased with the stick on his left jaw and the women folk sprayed chilli powder and the deceased sustained grievous injuries. P.Ws.1 to 3 had also sustained injuries. The appellants and the women folk ran off from the scene of occurrence. Due to injuries caused during the quarrel, the deceased died on the spot.
5. P.W.1 went to Bala Viduthi Police Station and gave a complaint to the Inspector of Police (P.W.10). He recorded the statement and registered a case in Cr.No.25/2002 under Secs.147, 148, 323, 324, 302 IPC. He prepared Ex.P.16 the printed First Information Report and forwarded the same to the Court and proceeded to the scene of occurrence and conducted inquest and forwarded the body of the deceased for post-mortem. He also prepared observation mahazar, seizure mahazar. He examined the eyewitnesses and other witnesses and recorded their statements. On 27.5.2002, around 6.00 a.m, he arrested the appellants. The 1st appellant gave a confession and P.W.10 recorded the same, pursuant to which, he recovered M.Os 1 to 6. The appellants were remanded to judicial custody and on completion of he investigation, he laid a charge sheet for the above said offences against 10 accused including the appellants before the learned Judicial Magistrate, Kulithalai.
6. The learned Judicial Magistrate committed the case to the District and Sessions Judge, Karur which was taken on file in S.C.No.68 of 2003 and trial was conducted. Eleven witnesses were examined. The learned District and Sessions Judge acquitted the accused 7 to 10 who are the women folk of the family of A.2 and convicted the appellants and imposed the sentence as stated above. Aggrieved by which, the appellants are before this Court.
7. The point that arises for consideration is whether the order of conviction and sentence passed by the learned Sessions Judge, Karur is sustainable.
8. Mr.AR.L. Sundaresan, the learned Senior Counsel appearing for the appellants submitted that the appellants as well as the witnesses were closely related and admittedly, a quarrel had ensued in relation to drawing of water from the common well and in the altercation, the appellant had also sustained injuries, which was not explained by the prosecution. According to the the learned Senior Counsel, suppression of genesis of the crime and non-explanation of the injuries to the appellants are fatal to the prosecution. The learned Senior Counsel pointed out that P.Ws.1 to 4 are said to be the eye witnesses, of whom, P.W.2, son of the deceased and P.W.4, the wife of the deceased turned hostile and did not support the case of the prosecution. He highlighted that there is an inordinate delay in the printed FIR reaching the Court and the narration of the events in Ex.P.1 is totally contradictory to the evidence of P.W.1. He stressed that even assuming that there was fatal injury caused to the deceased it was only in the result of exercising the private defence by the appellants and therefore, the order of conviction and sentence passed by the trial court is legally not sustainable.
9. To fortify the fulcrum of his submission that when the genesis of the occurrence itself is not explained, automatically, the appellants are entitled for acquittal, learned senior counsel would cite the following case laws:
1.(2006) 3 SCC (Crl) 212 (Nagarathinam and Others vs State represented by Inspector of Police)
2.(2002) SCC (Crl) 1659(Subramani and Others vs State of T.N) .
10. On the contrary, Mr.Issac Manuel, the learned Additional Public Prosecutor would submit that the motive aspect of the prosecution case has been clearly spoken to by P.Ws.1 to 4 and the injured eyewitnesses had also vividly graphed the individual overt act of each of the appellants which is corroborated by the medical evidence and therefore, the prosecution has proved the case beyond reasonable doubt. He also submits that the arrest of the accused and their confession leading to recovery of weapons would advance the strong case of the prosecution and therefore, the well considered order of conviction and sentence passed by the trial court is sustainable.
11. The learned Additional Public Prosecutor would submit that the appellants have not lodged any complaint for the injuries alleged to have been sustained in the course of occurrence and therefore, hardly there would be any obligation for the prosecution to explain the injuries sustained by the appellants.
12. Heard and perused the materials available on record.
13. Admittedly, the family of the appellants and that of the deceased are closely related. There were disputes regarding a common well and the irrigation rights. The prosecuting parties are the sons and the wife of the deceased and the accused are brothers and their families. Admittedly, a quarrel erupted around 8.00 p.m at the common well as regards drawing of water therefore, in which dispute, both the families seemed to have assaulted each other after exchanging hot words. Though P.Ws.1 to 3 had sustained injuries, P.W.1 had not stated anything in his chief examination about the said aspect. Interestingly, the other son of the deceased P.W.2 and the wife of the deceased P.W.4 who were also eyewitnesses did not support the case of the prosecution.
14. P.W.1 would state that the 1st appellant assaulted with an iron rod on the head of the deceased. The deceased had sustained a depressed lacerated injury and a fracture of temporal region of the skull. Though he would attribute overt act against the other appellants for the attack on the deceased, there is no corresponding injuries noted down by the doctor, who conducted the post- mortem and issued Ex.P.6 P.M.C.
15. P.W.10, the investigating officer in his cross-examination would admit that when the accused were arrested, they had external injuries. He would admit that he had not sent them for treatment. He would also admit that on examination of P.W.1 he had stated that the appellants 1 to 4 sustained injuries in the occurrence.
16. The 1st appellant was examined as D.W.1 and the doctor attached to Manapparai Government Hospital was examined as D.W.2. The doctor would state that on 25.5.2002 around 10.55 p.m, he examined appellants 1, 2 and 4 and he has also produced D.5 to D.7 Accident Registers. Therefore, it is proved by the defence that appellants 1,2 and 4 had also sustained injuries. However, the prosecution has not explained the injuries on the appellants. Ex.D.1 is the judgment in C.C.No.92 of 2000 arising from the complaint given by Pws.1 and 5. A case has been registered and investigated and charge sheet has also filed against P.Ws.1and 2. They were also convicted and sentenced.
17. Exs.D.2 to D.4 are the statements given by the appellants 1, 2 and 4 before the learned Judicial Magistrate, wherein it is stated that they had sustained injuries during the occurrence.
18. Adverting to the above particulars, the learned senior counsel for the appellants would submit that the prosecution had suppressed the genesis of the occurrence and has failed to explain the injuries caused to the appellants and therefore, the entire evidence of the prosecution is unreliable. The learned counsel also pointed out that even according to the prosecution a quarrel had erupted because of the foul play of P.W.1 who damaged the electric motor of the appellants and there was altercation between the two families, blows have been exchanged and both the parties had sustained injuries and in such a situation, it has to be construed that only in exercise of the right of private defence of person and property the deceased had sustained injuries.
19. In (2006) 3 SCC (Crl) 212 (Nagarathinam and Others vs State represented by Inspector of Police), wherein the Apex Court has held as follows:
26. It was opined that private defence and prevention of crime are sometimes indistinguishable. It was held that such a right could be exercised because there is a general liberty as between strangers to prevent a felony.
27. In Jalaram v. State of Rajasthan2 this Court upon noticing that the appellant frowned dispossession from the agricultural lands and furthermore only one blow was hurled on the forehead of the deceased by the appellant therein accepted his right of private defence but opined that he exceeded the said right holding: (SCC p. 351, paras 13-15) "13. The right of way on the agricultural land belonging to Sonaram has not been established. If there was no established right of way by way of easement or otherwise and if there had been an apprehension in the minds of the accused that there was a threat of trespass in their land, indisputably they could exercise their right of private defence. In any event, such an apprehension on the part of the appellant and other accused persons cannot be ruled out.
14. We have noticed herein before, that the only blow which was hurled by the appellant herein was on the forehead of the deceased. The genesis of the occurrence appears also not to have been disclosed by the prosecution. It is not the case of the prosecution that the appellant herein and other accused persons had been nurturing any grudge against the deceased or the informant from before or had any motive to commit the aforementioned offence. Any motive on the part of the appellant and other accused persons for hiding themselves near the place of occurrence and committing the offence has not been established. It is, thus, difficult to accept that part of the prosecution case.
15. Sonaram and Kisana Ram had also received one injury each. It is true, as has been held by the High Court, that the nature of injuries was simple one but it was, in the peculiar facts and circumstances of this case, obligatory on the part of the prosecution to prove as to how they received the same. It is also true that in all situations the injuries received by the accused persons need not be explained but a different situation may arise when a right of private defence is claimed. The prosecution has not placed any material before this Court to prove that it was the appellant and other accused persons who were the aggressors. If they were not the aggressors, the plea of right of private defence was available to them. Non-explanation of injuries on the person of Sonaram and Kisana Ram, thus, gains significance. Injuries on the persons of the accused having not been explained by the prosecution gives rise to the credibility to the defence put forth by the appellant as regards exercise of his right of private defence."
28. The matter might have, thus, been otherwise if the prosecution could have established that the appellants have exceeded their right of private defence.
The exercise of the right of private defence, in our opinion, must be determined, having regard to the entire factual scenario.
20. In (2002) SCC (Crl) 1659 (Subramani and Others vs State of T.N), the Apex Court has held as follows:
19. It is well settled that once it is held that the accused had the right of private defence and reasonably apprehended that death or grievous bodily hurt would be the consequence if the right of private defence was not exercised, the right of private defence of property extended under Section 103 IPC to voluntarily causing the death of the aggressor subject to restrictions mentioned in Section 99 IPC. In this case, if the appellants acted in exercise of their right of private defence of property, it cannot be said that they committed a criminal act in furtherance of a common intention, because Section 96 IPC makes it abundantly clear that nothing is an offence which is done in the exercise of the right of private defence. They did not intend to commit any criminal act or to do anything which may be described as unlawful. Their object was not to kill the deceased but to protect their property. It may be, that in a given case it may be found on the basis of material on record that some of them may have exceeded their right of private defence and for that they may be individually held responsible. But it cannot be said that the murder was committed pursuant to a common intention to commit such crime. In somewhat similar circumstances in State of Bihar v. Nathu Pandey1 this Court considered the question as to whether the accused could be convicted under Section 302 read with either Section 149 or Section 34 IPC. It observed: (SCC p.210, para 8) "8. In order to attract the provisions of Section 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the assembly. Under the fourth clause of Section 141 as assembly of five or more persons is an unlawful assembly if the common object of its members is to enforce any right or supposed right by means of criminal force or show of criminal force to any person. Section 141 must be read with Sections 96 to 106 dealing with the right of private defence. Under Section 96 nothing is an offence which is done in the exercise of the right of private defence. The assertion of a right of private defence within the limits prescribed by law cannot fall within the expression 'to enforce any right or supposed right' in the fourth clause of Section 141."
20. It, therefore, follows that the intention of the appellants was not to cause the death of Jayavelu but they had acted in exercise of their right of private defence. While acting in exercise of the right of private defence, the appellants cannot be said to be motivated by a common intention to commit a criminal act. Common intention has relevance only to the offence and not to the right of private defence.
21. On perusal of the evidence of the investigating officer, it is clear that the appellants 1, 2 and 4 had also sustained injuries. The prosecution has failed to explain such injuries. The case of the prosecution is that the appellants went to the common well and started the quarrel when they found that their electric motor was not working. On the other hand, it is the case of the defence that the deceased and the prosecution witnesses are the aggressors who had damaged the property of the appellants and they had exercised their right of private defence.
22. The doctor, who conducted post-mortem, would state that the deceased had sustained a fracture on the skull and the death is also due to such injury on the head. P.Ws.1 and 3 would state that the 1st appellant had assaulted the deceased with an iron pipe on the head of the deceased. He had sustained only a single blow. Though the accused persons had exercised the right of private defence of property, the medical evidence and the oral evidence of P.Ws.1 and 3 would go to show that the 1st appellant had exceeded in exercising the right of private defence by attacking the deceased with iron pipe on his head, resulting in his death.
23. Under such circumstances, we are of the considered view that the 1st appellant had exceeded his right of private defence and liable to be convicted only for an offence under Sec.304 (Part II) and the other appellants cannot be held liable for any offence. Their individual overt act against the deceased was not proved and a common intention is also not proved.
24. In the result, the appeal is partly allowed and the conviction and sentence against appellants 2 to 6 are set aside and they are acquitted. Fine amount paid by appellants 2 to 6 are ordered to be refunded.
25. The 1st appellant alone is convicted for the offence under Sec.304 (part II) and sentenced to undergo an imprisonment for 5 years and the period of detention already undergone by the appellant is ordered to be set off under Sec.428 of Cr.P.C. Fine amount imposed on the 1st appellant is confirmed.
sr/nbj To
1. The learned Sessions Judge, Karur.
2. The Inspector of Police, Palaviduthi Police Station, Karur District.
3. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.