Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.5 OF 2009
Sukumaran ….Appellant(s)
VERSUS
State Rep. by the Inspector of Police ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is filed against the final judgment
and order dated 12.06.2008 passed by the High
Court of Judicature at Madras in Criminal Appeal
No.513 of 2006 whereby the Division Bench of the
Signature Not Verified
Digitally signed by
ASHOK RAJ SINGH
Date: 2019.03.07
17:29:11 IST
Reason:
1
High Court partly allowed the appeal filed by the
appellant herein.
2. In order to appreciate the issues involved in
this appeal, it is necessary to set out the facts
infra.
3. The appellant herein (A1) along with co
accusedChinnakolandai (A2) were tried for the
commission of the offences punishable under
Section 302 read with Sections 109 and 203 of the
Indian Penal Code, 1860(hereinafter referred to as
“IPC”), Section 36A and E of the Tamil Nadu Forest
Act, 1882 and Section 3 read with Section 25 (1B)
(a) of the Arms Act in the Court of Additional
Sessions Judge, Dharmapuri in Session Case
No.342/2004.
4. By Judgment/order dated 17.05.2006, the
Additional Sessions Judge convicted the appellant
herein(A1) for the offences punishable under
Sections 302 and 203 IPC, Section 36A and E of
2
the Tamil Nadu Forest Act and Section 3 read with
Section 25(1B)(a) of the Arms Act and sentenced
him to undergo life imprisonment with a fine of
Rs.2000/ and in default of payment of fine to
further undergo rigorous imprisonment for three
months under Section 302 IPC, to undergo rigorous
imprisonment for two years with a fine of Rs.500/,
in default of payment of fine to undergo further
simple imprisonment for three months under
Section 203 IPC, to undergo rigorous imprisonment
for two years with fine of Rs.7,500/, in default of
payment of fine, to undergo further simple
imprisonment for three months under Section 36A
and E of the Tamil Nadu Forest Act, to undergo
imprisonment for two years with a fine of Rs.500/
in default of payment of fine to further undergo
simple imprisonment for three months under
3
Section 3 read with Section 25 (1B)(a) of the Arms
Act.
5. All the awarded sentences were to run
concurrently. So far as CoaccusedChinnakolandai
(A2) is concerned, he was acquitted from all the
charges.
6. The appellant (A1) felt aggrieved by the order
of conviction and sentence passed against him and
filed criminal appeal in the High Court of Judicature
at Madras. So far as the order acquitting co
accused Chinnakonlandai (A2) was concerned, the
State did not file any appeal against that part of the
order and hence the order of acquittal of co
accusedChinnakolandai (A2) became final.
7. The High Court, by the impugned order,
allowed the appeal in part and while setting aside
the conviction and sentence imposed on the
appellant under Section 302 IPC altered it to
4
Section 304 PartII IPC and sentenced him to
undergo rigorous imprisonment for five years with a
fine amount of Rs.2000/ and in default of payment
of fine, to further undergo rigorous imprisonment
for three months. The appellant was, however,
acquitted from the offence punishable under Section
36A and E of the Tamil Nadu Forest Act and was
also acquitted from the offence punishable under
Section 25 (1B) (a) of the Arms Act. However, the
High Court did not consider the case of the
appellant so far as his conviction under Section 203
IPC is concerned. The State has not filed any appeal
against that part of the order by which the appellant
was acquitted from the charges as detailed above.
8. So, the short question, which arises for
consideration in this appeal, is whether the High
Court was justified in convicting the appellant
under Section 304 PartII IPC and was, therefore,
5
justified in awarding rigorous imprisonment for five
years.
9. In other words, the question to be considered
in this appeal is whether the prosecution was able
to prove beyond reasonable doubt that the appellant
was guilty for commission of the offence punishable
under Section 304 part II of IPC.
10. In order to answer this question, it is
necessary to take note of the prosecution case in
brief infra .
11. The appellant (A1) was working as Forest
Range Officer in State Services. He was posted in
Dharmapuri forest area in the State of Tamil Nadu.
12. According to the prosecution, on 05.06.1988 at
around 6.30 a.m., the appellant while on duty was
going in his official jeep bearing Registration No.
TNC 9206 along with coaccused(A2) driver of his
Jeep to Pennagaram Main Road from Kattampatti
6
Road. At that time, the appellant noticed that four
persons, namely, Bashathe deceased, Chan Basha
(PW1), Ganesha (PW2) and one cleaner were going
in a lorry bearing No. ADA 4869. On seeing the
lorry, the appellant chased it upto some distance.
However, Bashathe driver of the lorry drove it for
some distance and then stopped, got down from the
lorry and started running with his associates. The
appellant, at that time, fired a gun shot from his
DBLGun, which hit Basha s/o Ameer causing his
death.
13. On these allegations, the prosecution prayed
that the appellant is liable to be prosecuted for an
offence punishable under Section 302 IPC.
14. It is also the case of the prosecution that the
lorry, which the deceased Basha was driving, was
empty. However, the appellant, after he shot Basha
from his gun which hit on his back, got down from
7
his jeep and then loaded 64 billets of sandal woods
weighing 276 KG and also kept one SBML Gun in
the lorry with a view to show that the deceased
party was smuggling sandal woods from the forest
area without holding a valid permit/license. It is
also the case of prosecution that the appellant with
the help of coaccused (A2)Driver then reached to
deceased party, caught hold of PW1 and PW2 and
brought them to the police station. Another person
Jaheer, however, managed to flee from the place.
15. It is also the case of the prosecution that the
appellant intentionally gave the false information by
lodging a complaint in the Police Station,
Pennagaram on 05.06.1988 stating therein that he
fired the gun shot to Basha in his right of private
defence.
16. On these allegations, the prosecution prayed
that the appellant be also prosecuted for an offence
8
punishable under Section 203 IPC. The
investigation was accordingly carried out. The
statements of the witnesses were recorded, material
items were seized and later the appellant and co
accused(A2) were apprehended. The chargesheet
was accordingly filed against them and the case was
committed to the Court of Additional Sessions
Judge.
17. The prosecution, in support of their case,
examined 16 witnesses and filed 23 documents. 15
MOs were marked. The appellant (A1) appeared as
DW1 to prove his case. His statement under
Section 313 of the Criminal Procedure Code was
also recorded.
18. The Additional Sessions Judge convicted the
appellant (A1) under Sections 302, 203 IPC and
Section 36A and E of Tamil Nadu Forest Act read
with Sections 3 and 25 (1B) (a) of the Arms Act.
9
The appellant was accordingly awarded sentence as
mentioned above. So far as coaccused (A2) is
concerned, he was acquitted from all the charges.
19. The appellant felt aggrieved and filed appeal in
the High Court of Madras. The High Court, by
impugned order, set aside the conviction and
sentence imposed on the appellant herein under
Section 302 IPC and altered it to Section 304 Part II
IPC and accordingly awarded him 5 years’ RI. As
mentioned above, the appellant was acquitted from
all other charges. However, the High Court did not
consider the legality and correctness of the
conviction under Section 203 IPC, though impugned
by the appellant in his appeal.
20. It is against this order, the appellant (accused
A1) has felt aggrieved and filed the present appeal
by way of special leave in this Court.
10
21. Heard Mr. A. Raja Rajan, learned counsel for
the appellant (accused) and Mr. Balaji Srinivasan,
learned counsel for the respondentState.
22. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeal, set aside the
impugned order and acquit the appellant from all
the charges for the reasons stated infra .
23. We find that the prosecution in order to prove
their case against the appellant had examined 16
witnesses. We also find that out of 16 witnesses, the
prosecution examined 2 witnesses, namely, (PW1
John Basha and PW2 Ganesh) as eyewitnesses to
prove the incident and the manner in which it
occurred. Indeed, the two Courts below also relied
on their evidence for sustaining the appellant's
conviction.
11
24. It is not in dispute, as is clear from the perusal
of Paras 18 and 19 of the judgment of the Additional
Sessions Judge dated 17.05.2006 and also para 2(a)
to (d) of the impugned order that both the eye
witnesses, i.e., PW1, PW2 and also PW3 and PW
7 were declared hostile.
25. In our considered opinion, when both the eye
witnesses–PWs 1 and 2 and also other two more
witnesses, namely, PW3 and PW7 were declared
hostile, there was no evidence to prove as to how
and in what manner, the incident in question had
occurred. In other words, apart from the evidence of
PW1 and PW2, the prosecution had not led any
evidence to prove the incident and the manner in
which the alleged incident had occurred .
26. Even on perusal of the evidence of PW1, PW
2, PW3 and PW7 to the extent it is permissible in
law because these four witnesses had turned hostile
12
coupled with perusal of the evidence of remaining
witnesses with a view to find out as to whether the
prosecution was able to prove their case against the
appellant beyond reasonable doubt, we find it
difficult to hold in favour of the prosecution that the
prosecution was successful in proving their case as
was required to be proved in law against the
accused(appellant herein).
27. Indeed, perusal of the evidence of remaining
witnesses, who were not declared hostile, clearly
shows that their evidence was not on the question
as to how and in what manner, the incident
occurred. We find their evidence to be on the
issues, such as proving of seizer, postmortem
report, ballistic report etc. etc.
28. In the light of the foregoing discussion, we are
of the view that the prosecution was not able to
prove the manner in which the incident occurred as
13
alleged by them in their charge sheet. In this view
of the matter, the appellant was entitled to be
acquitted from the charges for want of any evidence
against him.
29. Be that as it may, since the appellant, in order
to prove his defence, examined himself as DW1
after seeking permission under Section 315 of the
Code of Criminal Procedure, it is necessary to
examine the question as to whether the appellant
was able to prove his defence.
30. The appellant, in substance, took a defence
that he fired a gun shot on the deceased party in his
right of private defence.
31. Before we examine this question, it is apposite
to take note of the law relating to a right of private
defence.
32. Sections 96 to 106 of IPC deal with right of
private defence of a person involved in commission
14
of offences under the IPC. Section 96 of IPC says
that nothing is an offence, which is done in the
exercise of the right of private defence.
33. Section 97 of IPC provides that a right of
private defence extends not only to the defence of
one’s own body against any offence affecting the
human body but also to defend the body of any
other person. The right also embraces the protection
of property, whether one’s own or another person’s,
against certain specified offences, namely, theft,
robbery, mischief and criminal trespass. The
limitations on this right and its scope are set out in
the sections which follow. For one thing, the right
does not arise if there is time to have recourse to
the protection of the public authorities, and for
another, it does not extend to the infliction of more
harm than is necessary for the purpose of defence.
Another limitation is that when death is caused, the
15
person exercising the right must be under
reasonable apprehension of death, or grievous hurt,
to himself or to those whom he is protecting; and in
the case of property, the danger to it must be of the
kinds specified in Section 103. The scope of the
right is further explained in Sections 102 and 105 of
the IPC.(See observations of Justice Vivian Bose in
Amjad Khan vs. Haji Mohammad Khan, AIR 1952
SC 165)
34. This Court also examined this question in the
case of Darshan Singh vs. State of Punjab & Anr.
(2010) 2 SCC 333 and laid down the following 10
principles after analyzing Sections 96 to 106 IPC
which read as under:
“ ( i ) Selfpreservation is the basic human
instinct and is duly recognised by the
criminal jurisprudence of all civilised
countries. All free, democratic and civilised
countries recognise the right of private
defence within certain reasonable limits.
( ii ) The right of private defence is available
only to one who is suddenly confronted with
16
the necessity of averting an impending
danger and not of selfcreation.
( iii ) A mere reasonable apprehension is
enough to put the right of selfdefence into
operation. In other words, it is not necessary
that there should be an actual commission of
the offence in order to give rise to the right
of private defence. It is enough if the accused
apprehended that such an offence is
contemplated and it is likely to be committed
if the right of private defence is not
exercised.
( iv ) The right of private defence
commences as soon as a reasonable
apprehension arises and it is coterminous
with the duration of such apprehension.
( v ) It is unrealistic to expect a person
under assault to modulate his defence step
by step with any arithmetical exactitude.
( ) In private defence the force used by
vi
the accused ought not to be wholly
disproportionate or much greater than
necessary for protection of the person or
property.
( vii ) It is well settled that even if the
accused does not plead selfdefence, it is
open to consider such a plea if the same
arises from the material on record.
( ) The accused need not prove the
viii
existence of the right of private defence
beyond reasonable doubt.
( ix ) The Penal Code confers the right of
private defence only when that unlawful or
wrongful act is an offence.
( x ) A person who is in imminent and
reasonable danger of losing his life or limb
may in exercise of selfdefence inflict any
17
harm even extending to death on his
assailant either when the assault is
attempted or directly threatened.”
35. In the light of the principle of law laid down by
this Court in the aforementioned two cases, we have
to examine the question as to whether the appellant
(A1) was justified in exercising his right of private
defence when he fired a gun shot on the deceased
party.
36. At this stage, it is apposite to reproduce the
FIR (ExP9), which was lodged by the appellant
immediately after the incident with Subinspector,
Police Station Pennagaram. It reads as under:
“EXHIBIT P 9
EXPRESS FIRST INFORMATION REPORT
B 785612
(FIRST INFORMATION REPORT IN RESPECT
OF OFFENCE FOR WHICH AN ARREST
COULD BE MADE BY THE OFFICER
INCHARGE OF THE POLICE STATION WITH
OUT THE ORDER OF THE COURT UNDER
SECTION 184 OF THE CRIMINAL
PROCEDURE CODE)
18
Crime No. 108/88
Police station: Pennagaram
Section and Act: 302 IPC
Circle: Pennagaram
District Dharmapuri
I received copy of the complaint lodged by me free
of cost.
Signature/
5.6.88
Submitted
Today the 5.6.88, Sunday at about 11.00 o’clock in
the morning, Mr. S. Sukumar, Dharmapuri forest
ranger appeared in the police station and lodged
the complaint. The details of the complaint is as
under:
S. Sukumaran, Forest ranger, Dharmapuri
To
Sub inspector of police, Police Station,
Pennagaram
Application number 1/88 dt. 5.6.88,
Sir, On the basis of the information about the
smuggling of sandal wood logs, I left
Dharmapuri in a jeep along with my driver
Mr. Chinnakulanthai on the evening at about
6.00 o’clock of 4.6.1988 in a jeep with
registration number TND 2296 and reached
Pennagaram. Through out the night we
inspected Nazanoor area. We completed the
inspection at about 5.00 o’clock in the
morning and left the place. Near Vanathipaty,
that is we reached near Kattampatty road,
Kattampatty junction road, we saw a lorry
19
coming in the Kattampatty road. We stopped
the lorry signaled the lorry to stop. Driver of
the lorry turned the lorry to left. Engine of
the lorry stopped We started to move towards
the lorry. Persons in the lorry got down and
started attacking us with stones. Glass pane
of the lorry was broken. Immediately, they
shouted that “you shoot them”. It was about
6.30 ‘o’clock in the morning. Then the
deceased person has taken out a gun. I
started early and I fired a gun shot one round
in self defense. He dropped the gun and fell
down. Thereafter, I apprehended other two
persons 1. John Basha and 2. Ganesan.
Cleaner Zaheer escaped. When we went to see
the above mentioned driver we found him
dead due gun shot wounds. I am now handing
over the country made gun which was in his
possession and the gun with which I fired
DBG 12 load (?) AB 8202321, empty cartridge
and two other cartridges to you. I request
you to take action on this. Sd. (S.
Sukumaran), 5.6.88, Forest ranger,
Darmapuri.
On the basis of the above mentioned I
registered the complaint as crime number
18/88 of the police station under section 302
of the Indian Penal Code and prepared the
express FIR and sent to the senior officer.
Sd.
5.6.88”
37. Reading the contents of the FIR (ExP9)
coupled with the appellant's evidence (DW1), we
20
find that firstly, there is a variation in the
prosecution version and the appellant’s version on
the manner in which the incident in question
occurred. However, having perused the FIR (Ex.P9)
lodged by the appellant and his evidence as DW1,
we are inclined to accept the version of the
appellant on the manner in which the incident
occurred.
38. In other words, having regard to the manner in
which the incident occurred, the appellant, in our
view, was entitled to exercise his right of private
defence against the deceased party inasmuch as it
was established on the basis of the factual scenario
on the spot that the appellant had reasonable
grounds for apprehending that either death or
grievous hurt would be caused to him or to his
driver (A2). It is clear from the following facts and
the reasoning detailed infra .
21
39. First, when the incident occurred in the early
morning at around 6.30 a.m., the appellant was
patrolling in the forest in official vehicle with his
driver (A2) since overnight; Second, by virtue of his
post, he was given Jeep and the gun for the
protection of forest area, forest produce, his own
body and the body of others on duty with him;
Third, the deceased party having seen that the
appellant was chasing their lorry made attempt to
flee from the place in the first instance but after
some time stopped and got down from their lorry
and started pelting stones on the appellant's jeep
which suffered damage; Fourth, the deceased party
consisted of four persons with weaponGun with
them whereas the appellant and his driver (A2)
were two.
40. Fifth, there is no evidence to show as to why
the deceased party was roaming in the forest area in
22
their lorry in such early hours. Sixth, it is not in
dispute that the forest in question is known for
producing sandal woods and sandal wood being an
expensive commodity for sale in the market, the
people were indulging in its smuggling at a large
scale in the forest area; Seventh, the appellant had
noticed that the deceased party was trying to
become aggressor in an encounter between him and
the deceased party because the deceased party had
started pelting stones on them so that the appellant
is not able to apprehend them. Eighth, the
deceased party not only was pelting the stones but
also shouting “fire them”. Ninth, the appellant, in
such scenario, had rightly formed a reasonable
apprehension that either death or grievous hurt
may cause to him or/and to his driver (A2). Tenth,
in these circumstances, it was enough for the
appellant to also react in his self defence against the
23
deceased party and fire from his gun towards the
deceased party to save him and his driver (A2);
Eleventh, the appellant having seen the suspicious
moments of the deceased party in the forest area
rightly formed an opinion that the deceased party
was moving around in the forest to smuggle the
sandal woods. The appellant was, therefore, entitled
to chase the deceased party and apprehend them
for being prosecuted for commission of offence
punishable under the forest laws. Indeed, that was
his duty; Twelfth, there was no motive attributed to
the appellant towards any member of the deceased
party; Thirteenth, the appellant and A2 rightly
caught hold of PWs 1 and 2 and brought them to
the police station; and lastly, the appellant promptly
filed a complaint(Ex.P8/9) in the police station
narrating therein the entire incident and the
manner in which it occurred and also surrendered
24
the gun recovered from the deceased party and his
own gun.
41. One of the reasons which persuaded the High
Court to form an opinion against the appellant was
that the bullet fired by the appellant hit the
deceased in his back. It is on this basis, the High
Court concluded that there was no justification on
the part of the appellant to exercise his right of
private defence.
42. We do not agree. This finding of the High
Court was based on the prosecution story which we
have held that the prosecution failed to prove for
want of evidence. In any case, in our view, the
question as to whether the right of private defence is
available and, if so, whether it is rightly exercised or
exceeded, the same is required to be examined
keeping in view the entire background facts and
25
circumstances in which the incident occurred
resulting in firing the gun shot.
43. The High Court, in our view, failed to
appreciate that firstly, the appellant had every
reason to believe that due to suspicious moment of
the deceased party in the forest, they were trying to
smuggle the sandal wood from the forest. Secondly,
the deceased party was aggressor because, as held
above, they first pelted the stones and damaged the
appellant’s vehicle shouting “fire them”. Thirdly,
the appellant’s duty was to apprehend the culprits
who were involved in the activity of smuggling
sandalwoods and at the same time to protect
himself and his driver in case of any eventuality
arising while apprehending the culprits.
44. Having seen the incident in this perspective,
we are of the opinion that firing the gun shot by the
appellant towards the deceased party cannot be
26
said to be in any way unjustified. In fact, the
appellant while firing the gun shot did not target
any particular person out of four as such but fired
to resist their aggression towards him and his driver
(A2). If the appellant had not fired, the deceased
party having said “fire them” could either use their
gun in shooting the appellant or A2 or would have
run away from the spot to avoid their arrest. It is
not in dispute that one gun was seized from the
deceased party on their arrest which was deposited
by the appellant along with his own gun in the
police station while registering the FIR (EX.P9).
45. In our considered opinion, the prosecution
having failed to prove their case could still prove
that the appellant was liable to be convicted in the
light of defence version. The High Court, therefore,
could have gone into the question as to whether the
appellant had no right of private defence against the
27
deceased party on such facts or whether he
exceeded his right. The prosecution even failed to
prove this fact while cross examining the appellant.
We find that nothing could be solicited from the
appellant in his crossexamination on these two
issues.
46. In the light of foregoing discussion, we are of
the considered opinion that the case of the
appellant satisfies the test laid down in the case of
(supra) and also satisfied the test laid
Amjad Khan
down in Clauses (ii), (iii), (iv), (v) and (viii) of
(supra). In other words, it was a
Darshan Singh
case where the appellant had a reasonable
apprehension that the deceased party may cause
him and A2 death or grievous hurt either by pelting
stones or by use of gun shot or by physical violence
jointly. In these circumstances, the appellant being
28
a forest ranger on duty was entitled to use his gun
against the deceased party.
47. In view of the foregoing discussion, we are of
the considered opinion that the Additional Sessions
Judge was not justified in convicting the appellant
for an offence of murder of Basha under Section
302 IPC. Similarly, the High Court was also not
justified in convicting the appellant for an offence
punishable under Section 304 Part II IPC. In other
words, in our view, the appellant was entitled for an
acquittal along with A2 from the charges framed
against him.
48. So far as the appellant’s conviction under
Section 203 IPC is concerned, the High Court did
not deal with this question in the impugned order
though it was challenged by the appellant in his
appeal. Having examined this question, we are of
the view that the conviction under Section 203 IPC
29
against the appellant is also not legally sustainable
for want of any evidence adduced by the
prosecution.
49. As a matter of fact, once it is held that the
prosecution has failed to prove their main case, the
offence under Section 203 IPC also must fail. It is
also for the reason because we have held that the
appellant was justified in taking a plea of self
defence against the deceased party which he was
also able to prove with the aid of evidence. In any
event, in the absence of any evidence as to from
where the appellant got 64 billets of sandal woods
for loading in the lorry of the deceased party and
the gun, an offence under Section 203 IPC cannot
be held as made out against the appellant.
50. In view of the foregoing discussion, the appeal
succeeds and is accordingly allowed. The impugned
order is set aside. As a consequence, the appellant
30
is acquitted from all the charges. His bail bonds are
discharged and he is set free.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[R. SUBHASH REDDY]
New Delhi;
March 07, 2019
31