S.B Sinha, J.— Leave granted.
2. The appellants herein were Accused 2 and 3 before the learned trial Judge. They, along with the wife of Appellant 2 (Accused 4) were tried jointly for alleged commission of murder of one Shanmugam under Section 302 of the Penal Code read with Section 34 thereof. Accused 1 was acquitted of the said charge. Accused 4 has been convicted only under Section 324 of the Penal Code. Thus, only Accused 2 and 3 are before us.
3. The incident took place on 5-7-1994 at about 6.00 p.m
4. The parties were members of a joint family. A partition took place as regards their residential house. PW 1, Chinnasamy was given a share of the building on the southern side, whereas Accused 2, Appellant 1 herein, was allotted share on the northern side. Appellant 2 was allotted a portion on the eastern side of the house. Allegedly, the portion allotted to PW 1 was larger in area compared to the portion given to the appellants. Accused 1 was allotted another ancestral house and some lands towards his share. The house allotted to Accused 1 was also adjacent to the property allotted to PW 1 and the appellant herein. PW 1 is said to have given a sum of Rs 10,000 to his father as the portion of the house allotted to him was larger in size.
5. Allegedly, despite registration of a deed of partition, PW 1 was not allowed to enjoy the portion of the property allotted to him. The appellants are said to have erected a wall and, thus, effectively prevented him from entering into the house through the main door. PW 1 fixed a new door and also inducted tenant(s). Tenants were allegedly forced to vacate the house and had been threatened by the accused persons, in respect whereof a complaint was made. All the accused pursuant thereto were summoned by the police and were warned.
6. PW 2 and the deceased Shanmugam were on visiting terms with PW 1. They, allegedly, were once assaulted by the accused.
7. An application was filed by PW 1 for measurement of his property, wherefor he also paid requisite fees. A Village Administrative Officer (PW 9) and the Surveyor (PW 10) were appointed for the said purpose. They came to measure the property. PW 2 and Shanmugam were present. Upon measurement, they allegedly informed the parties that the portion allotted to PW 1 runs up to the middle portion of the house and advised them to erect a wall, whereupon, allegedly, it was stated by the accused that they would not permit PW 1 to do so. They were asked to see the Village Administrative Officer by PWs 9 and 10. Accordingly, the parties went to the office of PW 9 at 5 p.m on 5-7-1994. PW 1, PW 2 and Shanmugam were coming back from office of PW 9. They came to the bus-stop as the deceased and PW 2 wanted to catch a bus for going to Velayuthampalayam. The accused allegedly came there variously armed. Appellant 2, allegedly, asked the deceased as to why he had been giving trouble to them whereupon a quarrel ensued. Appellant 2 is said to have assaulted the deceased on his head with a firewood log, whereas Appellant 1 is said to have assaulted him on his right cheek with a firewood log. PW 1 intervened. He was assaulted on his leg and on the back of his chest. Accused 4 allegedly assaulted PW 2 on her leg. She also fell down. Appellant 1 also, allegedly, assaulted his daughter with fists. Apart from the injured witnesses (PWs 1 and 2 and PW 3), an employee of a powerloom factory belonging to PW 1, was also present there and witnessed the occurrence. The deceased was taken to the hospital by PWs 1 and 2. A complaint was made by PW 1 to the Head Constable of the police station, PW 13, which was reduced to writing. Accused 1, according to the prosecution witnesses, was also present in the police station. Shanmugam was referred to Coimbatore Medical College, where he died at about 10.40 a.m on 6-7-1994. In the meantime, the Inspector of Police, PW 15 started investigation. He, apart from examining PWs 1 and 2, also examined Shanmugam, the deceased. Accused 1, 2 and 3 were arrested on 8-7-1994. Accused 3 surrendered before the court on the same day.
8. The defence raised by Accused 4 (sic) was that as the deceased attempted to stab him with a bichuva knife, he picked up a stick, which was lying nearby and assaulted him. The deceased (sic) had, allegedly, boarded a bus and went to the police station where he was detained. Appellant 2 herein, admittedly, wrote a letter to the Superintendent of Police on 8-7-1994, a copy whereof was sent to the Inspector of the Police, PW 15. In his deposition, PW 15 admitted to have received the said letter.
9. The accused persons admittedly were in custody from 8-7-1994 to 12-7-1995. The defence, however, was not accepted by the courts below, on the premise that the same was by way of an afterthought. In its judgment, the High Court opined that the letter must have been dispatched on 11-7-1994, after the arrest of Appellant 1 herein with a view to create a defence.
10. Mr V.J Francis, learned counsel appearing on behalf of the appellants would submit that although a plea of self-defence was raised on behalf of the appellants, the same was not considered in its proper perspective either by the learned trial Judge or by the High Court. The learned counsel pointed out that PW 3 had admitted that a knife was found at the spot. Our attention was further drawn to the fact that even the learned trial Judge in his judgment noticed:
“… The 13th witness, Thiru Manikam, Head Constable has denied the suggestion made by the learned counsel for the accused that the 2nd accused, Karuppusamy has come to the police station before Chinnasamy came to lodge his complaint. But the 1st witness Chinnasamy has admitted in his cross-examination that he has seen the 2nd accused Karuppusamy in the police station. It creates a cloud of doubts with regard to the confession and recovery of material objects by the 2nd accused. Anyhow, the 14th witness who is the VAO has categorically deposed about the confession as well as the recovery of the material objects from the 1st, 2nd and 4th accused. Further the evidence of 1st, 2nd and 3rd witnesses categorically prove beyond reasonable doubt that the 3rd accused, Mottaippan has attacked Shanmugam on his head with the help of wooden stick which is marked as MO 1 and the 2nd accused Karuppusamy has attacked Shanmugam on the face and other parts with the help of wooden stick which is marked as MO 2 and thereby caused the death of Shanmugam, and that 4th accused, Banumathi has attacked the 2nd witness, Lakshmi with the help of wooden stick which is marked as MO 3 and caused injuries viz. (1) a contusion on her right ankle, (2) a contusion on her right leg knee, and (3) contusion measuring 3 cm × 7 cm on the left side of her hip and that he has given a wound certificate which is marked as Ext. P-18.”
11. The fact that the death of the deceased was caused due to assault upon him by the appellants herein is not in dispute. What is, however, is of some significance is that the learned trial Judge acquitted Accused 1 and convicted Accused 4 only under Section 324 of the Penal Code. He, thus, had discarded the case of the prosecution that the appellants had come in a body to the bus-stop with an intention to kill the deceased.
12. The parties had gone to the Village Administrative Officer. The deceased and his wife, PW 2, accompanied the parties. Their close relation with PW 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 PW 9.
13. It is wholly unlikely that Accused 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 PW 1. The High Court did not believe the story on the premise that the letter of the appellant dated 8-7-1994 was issued by way of an afterthought. PW 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. The date of the letter being 8-7-1994 is not in dispute. PW 15 in his deposition stated:
“The third accused had sent to me a copy of the complaint dated 8-7-1994 addressed to the Superintendent of Police (Rural) and that is marked as Ext. D-1 and the post-acknowledgment card is Ext. D-2.”
14. It is one circumstance which, in our opinion, was significant in determining the nature of the offence.
15. PW 3, who is stated to be an independent witness, in his cross-examination did not support the prosecution case. He stated:
“… I know the warp stick in the loom; that the 2nd accused also beat the injured person; at the place of attack there was a stick and bichuva knife; that stick was not that of a warp stick.”
16. The fact that a knife was found at the spot, therefore, was accepted. It was not the prosecution case that any of the accused was carrying any knife.
17. He denied the suggestion that after the occurrence Appellant 1 went away by a bus. He furthermore accepted that the parties quarrelled with each other. After the assault, allegedly, a lady shopkeeper and some others interfered and separated the parties. He was not in a position to say who had assaulted the lady. He also left the place. He did not notice whether the brother (viz. PW 1) came along with the wife of the deceased.
18. Appellant 1 was in the police station at the time when the complaint was lodged. Evidently, he also came there to lodge a complaint. According to him, the investigating officer was harassing them and had not been investigating the case properly, as they had been picked up by the police, although they were not at fault.
19. We have noticed hereinbefore that PW 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.
20. 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.
21. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the appellants should not have been found guilty for commission of an offence under Section 302 of the Penal Code. We are not oblivious of the fact that both the accused gave one blow each. The blow given by Appellant 1 although was on a vital part, but it must also be borne in mind that when a person loses his sense, he may act violently. That by itself may not be a ground to reject the plea of self-defence. Recently in Kailash v. State of M.P (2006) 11 SCC 420 disposed of by this Court on this date, it was opined that a holistic view of the matter is required to be taken.
22. We, therefore, are of the opinion that the appellants are guilty of commission of an offence under Section 304 Part II and not under Section 302 of the Penal Code. The judgment of conviction is altered accordingly. They are sentenced to undergo 10 years' rigorous imprisonment.
23. The appeal is allowed to the extent mentioned hereinabove.