Gopal vs The Inspector of Police

CRL.A(MD).No.869 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 15.10.2026
PRONOUNCED ON : 30.10.2026
CORAM
THE HON'BLE MR JUSTICE M. NIRMAL KUMAR
AND
THE HON'BLE MR.JUSTICE N.GUNASEKARAN
CRL A(MD) No. 869 of 2023
CNR:{HCMD010962702023}
Gopal
… Appellant / Accused
Vs
The State of Tamil Nadu rep by its,
The Inspector of Police,
Seithur Police Station,
Virudhunagar District.
(Crime No.48 of 2019)
… Respondent / Complainant
PRAYER: Criminal Appeal is filed under Section 374(2) of the
Criminal Procedure Code, to call for the records and set aside the
conviction and sentence imposed on the appellant in S.C.No.135 of 2019
vide; judgment dated; 30.06.2023 on the file of the learned Principal
District and Sessions Judge, Virudhunagar at Srivilliputhur.
For Appellant : Mr.M.J.Riaz Ahamed
For Respondent : Mr.G.Karuppasamy Pandiyan,
Additional Public Prosecutor
J U D G M E N T
(Judgment of the Court was made by N.GUNASEKARAN,J.)
The appellant / sole accused in S.C.No.135 of 2019 on the file of
the learned Principal District and Sessions Judge, Virudhunagar at
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CRL.A(MD).No.869 of 2023
Srivilliputhur has filed this appeal challenging the following conviction
and sentence imposed against him in the impugned judgment dated
30.06.2023.
Sentence of
Sentence of
imprisonment
Fine
law
Section 341 of
- Rs.100/- i/d to undergo one
IPC
week simple imprisonment
Section 506
To undergo one
Rs.1000/- i/d to undergo
(ii) of IPC
year of
imprisonment
three months simple
imprisonment
Section 302 of
To undergo life
Rs.5,000/- i/d to undergo six
months simple imprisonment
IPC
imprisonment
Period of detention already undergone by the appellant was ordered
to be set off and the sentences were ordered to run concurrently.

2). Case of the prosecution in brief reads as follows:
Baymalai / Defacto Complainant / P.W.1 and Ganesan were the
husband and wife, and Malaiyarasi / P.W.2 is their only daughter. She got
married to Malaiyarasan, who is the son of Gopal / accused herein. The
said Malaiyarasan died eight months prior to the occurrence after being
bitten by a stray dog. The accused being the father-in-law of Malaiyarasi /
P.W.2 had suspected that the cause of such death of his son was due to
sorcery of her father viz; Ganesan and insisted her to transfer the title of
the house standing in the name of his son and her and to pay him a sum of
Rs.30,000/- out of the balance sale proceeds of the livestock being reared
by his son. Further case of the prosecution is that on 09.02.2019, at about
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CRL.A(MD).No.869 of 2023
07.00 p.m., the aforesaid Ganesan along with other male members of the
village went to worship the deity of Karumalaiyan temple having located
on the western side of Seithur and returned home by early hours of
10.02.2019 at about 01:15 a.m. and on a urge to defecate, he informed his
wife and daughter viz; P.W.1 and P.W.2 and went to canal side and while
he was proceeding four houses away from his residence, Gopal / accused
had waylaid and wrongfully restrained the Ganesan nearby the house of
Krishnan in the Valaiyar Street with an intention to murder him and
inflicted injuries with an aid of knife and criminally intimidated Baymalai
/ P.W.1 and Malaiyarasi / P.W.2 when they attempted to rescue him on
witnessing the occurrence and he fled away. Immediately, the injured was
admitted to the Government Hospital at Rajapalayam for treatment by
P.W.1 and P.W.2 with the help of Mariyappan / P.W.3 who being the
brother of the defacto complainant / P.W.1 with an aid of auto rickshaw
of Vijayakumar / P.W.4. On such admission, Thangamarimuthu / P.W.7,
being a duty doctor had prepared an accident register in Ex.P8 and gave
first aid treatment. On very same day, on intimation, the Venkatesh /
P.W.8, Sub-Inspector of police, Seithur police station had visited the
Government Hospital at Rajapalayam, at about 02:30 a.m and received a
complaint statement in Ex.P1 from the Baymalai / P.W.1 and returned
back to police station and registered the first information report in Ex.P9
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CRL.A(MD).No.869 of 2023
at about 04.00 a.m in Crime No. 48 of 2019 under Sections 341, 307 read
with 506(ii) of the Indian Penal Code and sent the original complaint
statement in Ex.P1 along with the first information report in Ex.P9 to the
concerned Judicial Magistrate Court at Rajapalayam. Kumaravel /
P.W.10 who being the Circle Inspector of Police, Seithur had took the
investigation of the case on 10.02.2019 at about 05.00 a.m. and visited
the scene of occurrence in North Valaiyar Street, Seithur at about 05:30
a.m. and prepared observation mahazar in Ex.P4 and rough sketch in
Ex.P11 and lifted blood-stain in a piece of gauze cloth in M.O.2 under
seizure mahazar in Ex.P5 in the presence of the witnesses viz; Ramar /
P.W.5 and Vadakkasi and examined the witnesses and recorded their
statement. On the very same day, at about 13:30 hours, the investigation
officer / P.W.10 had arrested the Gopal / accused nearby the Bharat
Petrol Bank at Seithur and recorded his confession statement in the
presence of Devaraj / P.W.6 and Ramar and seized the knife in M.O.1 at
about 14:45 hours from the thorn bushes behind EPS Theatre, Seithur
under seizure mahazar in Ex.P7 in the presence of the aforesaid
witnesses. In the meantime, the injured namely Ganesan had died on
11.02.2019 at about 12:15 hours when he was in further treatment at
Government Hospital, Tirunelveli and as a result, the investigation officer
/ P.W.10 had altered the sections of the offences from 341, 307 and
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CRL.A(MD).No.869 of 2023
506(ii) of IPC to 341, 302 and 506(ii) of IPC, as per the alteration report
in Ex.P12, and conducted inquest at about 10.00 a.m. on the very same
day in the presence of Panchayathars and prepared the inquest report in
Ex.P13 and submitted a request to conduct postmortem. On such request,
on 12.02.2019 at about 12.20 p.m., Dr.A.Selvamurugan / P.W.9,
Associate Professor in Forensic Medicine, Tirunelveli Medical College,
Tirunelveli had conducted postmortem and submitted a postmortem
report in Ex.P10 with the opinion that the deceased would have died due
to complication of stab injury. On completion of postmortem, the white
colour dhoti in M.O.3 was seized from the body of Ganesan under Form
95. On 27.02.2019, the statement of witnesses namely P.W.1 and P.W.2
were recorded under Section 164 of the Criminal Procedure Code by the
Judicial Magistrate Court No.II, Srivilliputhur in Ex.P2 and P3,
respectively. Later, the investigation officer / P.W.10 had received
biological and serological report in Ex.P14 and P15, respectively, in
addition to certificate from the Section Grade Town Panchayat, Seithur in
Ex.P16 to show the illumination of street light during the relevant time of
occurrence and on completion of investigation, he had laid final report
against the accused for an offence punishable under Sections 341, 302
read with Section 506(ii) of IPC. On such final report, the Judicial
Magistrate Court at Rajapalayam took the cognizance of the case in
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CRL.A(MD).No.869 of 2023
Preliminary Registration Case No. 12 of 2019 and furnished the copy of
relevant record to the accused as per Section 207 of Criminal Procedure
Code and committed the case to the Court of Sessions under Section
209(a) of the Criminal Procedure Code. On such committal, the Principal
District Sessions Court, Virudhunagar District at Srivilliputhur had took
the case on file in Sessions Case No. 135 of 2019 and ordered for trial
since the accused had denied the charges levelled against him and
claimed to be tried.
3). On trial, the prosecution had examined 10 number of witnesses
viz; P.W. 1 to P.W. 10 and marked documentary evidence in Ex.P1 to
P16 along with material objects in M.O. 1 to M.O. 3. On conclusion of
recording of evidence on behalf of the prosecution, the accused had
denied all the incriminating circumstances appearing against him in such
evidence as false when he was questioned under Section 313(1)(b) of the
Criminal Procedure Code and he neither let in oral nor documentary
evidence. Upon the appreciation of evidence, the trial court had found the
accused being guilty for an offence punishable under Section 341, 302
read with Section 506(2) of IPC and convicted him to undergo sentence.
Aggrieved over the same, the accused had preferred the Appeal under
judgment.
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CRL.A(MD).No.869 of 2023
4). Submission of the learned counsel appearing for the
appellant / accused is as follows:
He would submit that P.W.1 and P.W.2 are the the wife and
daughter of the deceased and are claimed to be witnesses to the
occurrence and that being so, the Investigating Officer had failed to seize
and produce their blood-stained clothes and such failure to do so, creates
serious doubt about their presence at the scene of occurrence. He would
further submit that according to the evidence of P.W.1, the neighbours
were standing outside their respective houses and had witnessed the
occurrence and however, P.W.10 / the Investigating Officer had admitted
that he had not recorded the statements of the persons residing in
Krishnan's house in front of which the occurrence was alleged to have
taken place. He would contend that the Investigating Officer had neither
examined nor cited any independent eye witnesses despite their alleged
presence at the scene of occurrence. Therefore, the non-examination of
such natural witnesses according to him would cast serious doubt over the
case of prosecution. He would also submit that the deceased was the
aggressor as could be inferred from the evidence of P.W.1 and contend
that the deceased was armed and was waiting for the arrival of the
accused in an open area and the accused had neither premeditated the
occurrence nor made any preparation to attack the deceased. He would
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CRL.A(MD).No.869 of 2023
further submit that the act of the accused did not amount to the use of
excessive force and that the circumstances of the case would fall within
the ambit of Section 100 of the Indian Penal Code. Accordingly, he
would contend that the accused was entitled to exercise the right of
private defence to protect his life. On the above grounds, the learned
counsel would seek to set aside the conviction and sentence imposed by
the trial Court.
5). Submission of the learned Additional Public Prosecutor is
as follows:
He would submit that the contentions raised by the learned counsel
for the appellant regarding the non-recovery of the blood-stained clothes
of P.W.1 and P.W.2 and the non-examination of independent
eyewitnesses do not by themselves warrant interference with the
judgment of the trial Court. He would contend that the evidence of P.W.1
and P.W.2 must be assessed in its entirety together with the other oral and
documentary evidence adduced by the prosecution. He would deny the
contention of the deceased being the aggressor and the appellant had
exercised his right of private defence since it is not supported by the
evidence. He would contend that the testimony of P.W.1 along with the
medical evidence of P.W.9 in addition to other materials on record would
support the case of prosecution. He would further submit that the
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CRL.A(MD).No.869 of 2023
appellant has not established the factual circumstances necessary to
justify the exercise of the right of private defence under Section 100 of
the Indian Penal Code. Accordingly, he would contend that the case law
relied upon by the learned counsel for the appellant are distinguishable on
their facts and would not advance the case of appellant herein. He would
also submit that the evidence of Doctor / P.W.9 who conducted the post-
mortem examination would corroborate the case of prosecution regarding
the nature of the injuries sustained by the deceased and would point out
that the post-mortem report marked as Ex.P10 and the evidence
concerning the recovery of the weapon marked as M.O.1 would support
to the prosecution version regarding the injuries sustained by the
deceased. He would therefore contend that the medical evidence read
along with the testimony of the eyewitnesses supports the case put forth
by the prosecution. He would further submit that the learned trial Judge
had carefully considered the oral and documentary evidence and rightly
found the appellant guilty of the offences punishable under Sections 341,
302 and 506(ii) of the Indian Penal Code. Therefore, he would contend
that the judgment of the Trial Court does not warrant interference and
seek to dismiss the Criminal Appeal.
6). On careful consideration of rival submissions made on behalf of
either side and perusal of records, this Court noticed that the points for
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CRL.A(MD).No.869 of 2023
consideration in the Appeal is as follows:
(i) Whether the prosecution has established the guilt of the accused
beyond reasonable doubt for the offences punishable under Sections 341,
302 and 506(ii) of the Indian Penal Code?
(ii) Whether the conviction and sentence imposed by the Trial
Court upon the accused is sustainable under law?
7). Discussion and Findings :
7.1. Both side heard. Records perused. Baymalai / P.W.1 and the
deceased in the case viz; Ganesan were the husband and wife, and
Malaiyarasi / P.W.2 is their only daughter. She got married to
Malaiyarasan, who is the son of Gopal / accused herein. The aforesaid
Malaiyarasan died about eight months prior to the date of occurrence and
it is the case of prosecution that he had died after being bitten by a stray
dog. It is also alleged that the accused had suspected the death of his son
was attributable to sorcery of Ganesan and insisted her to transfer the title
of the house standing in the name of his son and her, and to pay him a
sum of rupees 30,000 out of the balance sale proceeds of the livestock
being reared by his son. Further case of the prosecution is that on
09.02.2019, at about 07.00 p.m., the aforesaid Ganesan along with other
male members of the village went to worship the deity of Karumalaiyan
temple having located on the western side of Seithur and returned home
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CRL.A(MD).No.869 of 2023
by early hours on 10.02.2019 at about 1:15 a.m. and on a urge to
defecate, he informed his wife and daughter viz; P.W.1 and P.W.2 and
went to canal side and while he was proceeding four houses away from
his residence, the accused had waylaid and wrongfully restrained him
nearby the house of Krishnan in the Valaiyar Street with the intention to
murder him and inflicted injuries with an aid of knife and criminally
intimidated Baymalai / P.W.1 and Malaiyarasi / P.W.2 when they
attempted to rescue him on witnessing the occurrence and he fled away
and later, Ganesan was succumbed to the injuries. The factum of the
relationship between the parties namely P.W.1 to P.W.3 and the accused,
the death of Malaiyarasan being the son of the accused and husband of
Malayarasi / P.W.2, are not in dispute.
7.2. It is to reiterate that the Malaiyarasi / P.W.2 is the daughter-in-
law of the accused and is the daughter of Baymalai / defacto
complainant / P.W.1. The motive of the accused such that his suspicion of
the sorcery of Ganesan being the cause of the death of his son viz;
Malaiyarasan and his persistent demand to transfer the title of the house
standing in the name of his son and daughter-in-law / P.W.2 and to pay
him a sum of Rs.30,000/- being the balance sale proceeds of the livestock
having reared by his son are established from the cogent and credible oral
evidence of P.W.1 to P.W.3 having been corroborated by the statement of
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CRL.A(MD).No.869 of 2023
P.W.1 and P.W.2 recorded under Section 164 of the Criminal Procedure
Code by the concerned Judicial Magistrate in Ex.P2 and P3, respectively,
in addition to Inquest Report in Ex.P13. The defacto complainant /
Baymalai / P.W.1 and Mariyappan / P.W.3 are coolie workers and shown
to be a rustic witnesses. The date and time of occurrence is on
10.02.2019 during odd hours i.e. at about 1:15 a.m. and the place of
occurrence is within the area of Selection Grade Town Panchayat, Seithur
and that being so, the movement of the public at large during such odd
hours cannot be expected to witness the occurrence. Moreover, the scene
of occurrence is located nearby the house of Krishnan which is four
number of house away from the place of the residence of the defacto
complainant / P.W.1 in the straight Valaiyar street as per the observation
mahazar in Ex.P4 and rough sketch in Ex.P11 and therefore, the P.W.1
and P.W.2 being the natural and ocular witness to the occurrence cannot
be ruled out. Moreover, their oral evidence were corroborated by the
complaint statement in Ex.P1 and also substantiated by their statement
before the concerned Judicial Magistrate under Section 164 of the
Criminal Procedure Code having corroborated by the evidence of P.W.3
who being the brother of the defacto complainant. Mariyappan / P.W.3
would depose that he had immediately rushed to the place of occurrence
on receiving information from the Malayarasi / P.W.2 over a phone and
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CRL.A(MD).No.869 of 2023
they admitted the injured to the Hospital for treatment with an aid of the
auto rickshaw being driven by Vijayakumar / P.W.4. The said factum of
the injured viz. Ganesan being brought to the hospital by P.W.3 is
established from the entry found in the accident register in Ex.P8.
7.3. In the matter of appreciation of evidence of witnesses, it is not
the number of witnesses but quality of their evidence which is important,
as there is no requirement under the Law of Evidence that any particular
number of witnesses is to be examined to prove / disprove a fact. It is a
time-honoured principle that evidence must be weighed and not counted.
The test is whether the evidence has a ring of truth, is cogent, credible
and trustworthy or otherwise. The legal system has laid emphasis on
value provided by each witness, rather than the multiplicity or plurality of
witnesses. It is quality and not quantity, which determines the adequacy
of evidence as has been provided by Section 134 of the Evidence Act as
per the principle laid down by the Hon'ble Supreme Court of India
reported in (2014) 3 SCC 401 in Gulam Sarbar -vs- State of Bihar . If
the testimony of single witness is found by the Court to be entirely
reliable, there is no legal impediment to the conviction of the accused
person on such proof.
7.4. Kumaravel / P.W.10 in his evidence deposed that he had lifted
the bloodstain from the place of occurrence under Seizure Mahazar in
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CRL.A(MD).No.869 of 2023
Ex.P5 in the presence of the witnesses in gauze of cloth in M.O.2 and
subjected for forensic examination. Such factum of lifting the blood-stain
was ascertained by the Ramar / P.W.5 in his evidence. Moreover, the
scene of occurrence is proved from the evidence of occurrence witnesses
viz; P.W.1 to P.W.3 having corroborated by the evidence of P.W.5 in
whose presence the relevant observation mahazar and rough sketch were
prepared by the investigation officer. The weapon involved in the offence
is a knife in M.O.1 and the same was shown to have recovered and seized
at the instance of the confession from the accused and the same is
established with an evidence of Devaraj / P.W.6.
7.5. The accused is the cause of death of Ganesan as per the
version of panchayathars according to the inquest report of the
investigation officer in Ex.P13. The prosecution was also able to produce
a certificate from the selection grade town panchayat, Seithur to show
that the occurrence had taken place in the illuminating street light at the
place of occurrence which enabled the P.W.1 and P.W.2 to witness the
occurrence. On cumulative analysis, it is noticed that the evidence of
P.W.1 and P.W.2 who being cited as ocular witnesses to the occurrence is
found to be intrinsically reliable, inherently probable and trustworthy
even though they are close relatives of the deceased. It is to note that
close relationship of witnesses with the deceased or victim is no ground
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CRL.A(MD).No.869 of 2023
to reject their evidence and on contrary, their evidence would normally be
most reluctant to spare the real culprit and falsely implicate an innocent
one as per the decision of Hon'ble Supreme Court of India reported in
(2007) 14 SCC 150 in Namdeo -vs- State of Maharashtra. Moreover, the
accused was identified by the P.W.1 and P.W.2 before the Court and had
deposed evidence in a cogent manner to the effect that he had criminally
intimidated them after stabbing the Ganesan with knife.
7.6. It is to reiterate that the occurrence had taken place on
10.02.2019 at about 1:15 a.m and the complaint statement from the
Baymalai / P.W.1 was received by Venkatesh / P.W.8, at about 2:30 a.m
and he returned back to the police station and registered first information
report at about 4 a.m and forwarded the complaint statement along with
the first information report to the concerned Judicial Magistrate Court
and the same had reached it at 19:45 hours as per the endorsement of the
concerned Judicial Magistrate having found in the same. Therefore, it is
revealed that the first information report was registered in time and the
same was sent to the concerned Judicial Magistrate Court within 24 hours
as required under the law and the mere delay in reaching the Court cannot
be termed as inordinate or fatal to the case of prosecution in the absence
of the sub-inspector of police, Seithur police station / P.W.8, who
registered the FIR, being a competent person, was not confronted in this
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CRL.A(MD).No.869 of 2023
regard by the defence side as per the decision of Hon'ble Supreme Court
of India reported in 2022 INSC 266 in M.Nageswara Reddy -vs- The
State of Andhra Pradesh and Others .
7.7. It is settled proposition of law that even if there are some
omissions, contradictions and discrepancies, the entire evidence cannot
be disregarded. After exercising care and caution and sifting through the
evidence to separate truth from untruth, exaggeration and improvements,
the court can come to a conclusion as to whether the residuary evidence is
sufficient to convict the accused. Thus, an undue importance should not
be attached to omissions, contradictions and discrepancies which do not
go to the heart of the matter and shake the basic version of the
prosecution's witness. As the mental abilities of a human being cannot be
expected to be attuned to absorb all the details of the incident, minor
discrepancies are bound to occur in the statements of witnesses. In the
case on hand, it is to reiterate that the evidence of P.W.1 and P.W.2 in
whole reliable and inspires the confidence of the Court by implicating the
accused having wrongfully restrained the deceased had murdered him by
inflicting injuries with armed knife and criminally intimidated them and
therefore, their evidence cannot be brushed aside on the sole ground of
being close relative of the deceased as per the principle laid down by the
Hon'ble Supreme Court of India reported in (2022) 12 SCC 200 in
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CRL.A(MD).No.869 of 2023
Rajesh Yadav and Another -vs- State of Uttar Pradesh.
7.8. The main defence of the appellant / accused is that the death
was caused to the Ganesan / deceased as an outcome of his private
defence. Such plea of defence is mutually destructive in nature and would
infer the acceptance of occurrence from the side of defence. It is noticed
that the accused had not sustained any injury in the alleged grappling in
the occurrence, whereas, the deceased had sustained injuries including
stab and cut injury as per the oral evidence of the doctors viz; P.W.7 and
PW9 in addition to the documentary evidence of accident register in
Ex.P8 and postmortem certificate in exhibit P10. The doctor / P.W.9 who
conducted post mortem is of opine that the deceased would have died of
the complication of stab injury to the region of chest. From the evidence
of Doctor / P.W.7 who registered the accident register in Ex.P8 and
rendered first aid to the injured would disclose that one among such
injury is on the chest through which the intestine was protruding. It is to
reiterate that the blood-stained portion was lifted under M.O.2 and
subjected to forensic examination as per the biological report in Ex.P14.
Therefore, omission to seize the blood-stained cloth from the P.W.1 and
P.W.2 alone is not fatal to the case of the prosecution, though it may be
flaw in the investigation, as their evidence is found to be credible, cogent
and trustworthy to affirm they being the eyewitness to the occurrence and
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CRL.A(MD).No.869 of 2023
therefore, the facts and circumstance of the case on hand is not applicable
to the cited case law of the Hon'ble Supreme Court on behalf of the
defence reported in AIR 2003 SC 1326 in Khima Vikamshi v. State of
Gujarat .
7.9. The perusal of records including the arrest memo of the
accused would reveal the lack of injury to him in the occurrence. It is the
specific case of the prosecution is that the accused having armed with
knife had waylaid and wrongfully restrained the Ganesan / deceased and
inflicted multiple injuries including stab and cut injury and as a result, he
succumbed to it.
7.10. Under law, the right of private defence of body commences,
as soon as, a reasonable apprehension of the danger to the body arises
from an attempt or threat to commit the offence, although the offence
may not have been committed and lasts till such reasonable apprehension
lasts. The right of private of defence is a question of fact, determined by
the circumstances surrounding the case and the burden of proof lies upon
the accused to establish a reasonable and probable version of self defence
as per Section 105 of the Indian Evidence of Act [Section 108 of the
Bharatiya Sakshya Adhiniyam, 2023 (BSA)]. It is to be noted that a
disproportionate number of injuries sustained by the victim, contrasted
with no injuries on the accused, undermines the private defence claim.
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CRL.A(MD).No.869 of 2023
The lack of injuries on the accused suggest an unprovoked aggression
rather than a necessary defensive act. The Hon’ble Supreme Court of
India, in the following case laws (i) Hanumantappa Bhimappa Dalavai
And Anr -vs- State Of Karnataka reported in 2009 AIR SCW 3675 (ii)
Ananta Deb Singha Mahapatra & Ors -vs- State Of West Bengal
reported in AIR 2007 SUPREME COURT 2524 and (iii) Sekar @ Raja
Sekharan -vs- State Rep.By Inspector of Police, T.Nadu in Appeal (crl.)
155 of 2002 had dealt the plea of private defence as follows:
“ Section 96, IPC provides that nothing is an offence which is done
in the exercise of the right of private defence. The Section does not define
the expression `right of private defence'. It merely indicates that nothing
is an offence which is done in the exercise of such right. Whether in a
particular set of circumstances, a person acted in the exercise of the right
of private defence is a question of fact to be determined on the facts and
circumstances of each case. No test in abstract for determining such a
question can be laid down. In determining this question of fact, the Court
must consider all the surrounding circumstances. It is not necessary for
the accused to plead in so many words that he acted in self-defence. If the
circumstances show that the right of private defence was legitimately
exercised, it is open to the Court to consider such a plea. In a given case
the Court can consider it even if the accused has not taken it, if the same
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is available to be considered from the material on record. Under Section
105 of the Indian Evidence Act, 1872, the burden of proof is on the
accused, who sets up the plea of self-defence, and, in the absence of
proof, it is not possible for the Court to presume the truth of the plea of
self-defence. The Court shall presume the absence of such circumstances.
It is for the accused to place necessary material on record either by
himself adducing positive evidence or by eliciting necessary facts from
the witnesses examined for the prosecution. An accused taking the plea of
the right of private defence is not required to call evidence; he can
establish his plea by reference to circumstances transpiring from the
prosecution evidence itself. The question in such a case would be a
question of assessing the true effect of the prosecution evidence, and not
a question of the accused discharging any burden. Where the right of
private defence is pleaded, the defence must be a reasonable and
probable version satisfying the Court that the harm caused by the
accused was necessary for either warding off the attack or for
forestalling the further reasonable apprehension from the side of the
accused. The burden of establishing the plea of self-defence is on the
accused and the burden stands discharged by showing preponderance of
probabilities is favour of that plea on the basis of the material on record.
(See Munshi Ram and Ors. v. Delhi Administration: AIR 1968 SC
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702: State of Gujarat v. Bai Fatima: AIR 1975 SC 1478: State of U.P. v.
Mohd. Musheer Khan: AIR 1977 SC 2226: and Mohinder Pal Jolly v.
State of Punjab: AIR 1979 SC 577).
Sections 100 to 101 define the extent of the right of private defence
of body. If a person has a right of private defence of body under Section
97, that right extends under Section 100 to causing death if there is
reasonable apprehension that death or grievous hurt would be the
consequence of the assault. The oft quoted observation of this Court in
Salim Zia v. State of U.P. (AIR 1979 SC 391), runs as follows:
"It is true that the burden on an accused person to establish the
plea of self-defence is not as onerous as the one which lies on the
prosecution and that, while the prosecution is required to prove its case
beyond reasonable doubt, the accused need not establish the plea to the
hilt and may discharge his onus by establishing a mere preponderance of
probabilities either by laying basis for that plea in the cross-examination
of the prosecution witnesses or by adducing defence evidence."
The accused need not prove the existence of the right of private
defence beyond reasonable doubt. It is enough for him to show as in a
civil case that the preponderance of probabilities is in favour of his plea.
The number of injuries is not always a safe criterion for
determining who the aggressor was. It cannot be stated as a universal
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CRL.A(MD).No.869 of 2023
rule that whenever the injuries are on the body of the accused persons, a
presumption must necessarily be raised that the accused persons had
caused injuries in exercise of the right of private defence. The defence
has to further establish that the injuries so caused on the accused
probabilises the version of the right of private defence. Non-explanation
of the injuries sustained by the accused at about the time of occurrence
or in the course of altercation is a very important circumstance. But mere
non-explanation of the injuries by the prosecution may not affect the
prosecution case in all cases. This principle applies to cases where the
injuries sustained by the accused are minor and superficial or where the
evidence is so clear and cogent, so independent and disinterested, so
probable, consistent and credit-worthy, that it far outweighs the effect of
the omission on the part of the prosecution to explain the injuries.
[See Lakshmi Singh v. State of Bihar (AIR 1976 SC 2263)]. In this case,
as the Courts below found there was not even a single injury on the
accused persons, while P.W.2 sustained large number of injuries and was
hospitalized for more than a month. A plea of right of private defence
cannot be based on surmises and speculation. While considering whether
the right of private defence is available to an accused, it is not relevant
whether he may have a chance to inflict severe and mortal injury on the
aggressor. In order to find whether the right of private defence is
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available to an accused, the entire incident must be examined with care
and viewed in its proper setting. Section 97 deals with the subject matter
of right of private defence. The plea of right comprises the body or
property (i) of the person exercising the right; or (ii) of any other person;
and the right may be exercised in the case of any offence against the
body, and in the case of offences of theft, robbery, mischief or criminal
trespass, and attempts at such offences in relation to property. Section 99
lays down the limits of the right of private defence. Sections 96 and 98
give a right of private defence against certain offences and acts. The
right given under Sections 96 to 98 and 100 to 106 is controlled by
Section 99. To claim a right of private defence extending to voluntary
causing of death, the accused must shows that there were circumstances
giving rise to reasonable grounds for apprehending that either death or
grievous hurt would be caused to him. The burden is on the accused to
show that he had a right of private defence which extended to causing of
death. Sections 100 and 101, IPC define the limit and extent of right of
private defence.
Sections 102 and 105, IPC deal with commencement and
continuance of the right of private defence of body and property
respectively. The right commences, as soon as a reasonable
apprehension of danger to the body arises from an attempt, or threat, or
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commit the offence, although the offence may not have been committed
but not until that there is that reasonable apprehension. The right lasts so
long as the reasonable apprehension of the danger to the body continues.
In Jai Dev. v. State of Punjab (AIR 1963 SC 612), it was observed that as
soon as the cause for reasonable apprehension disappears and the threat
has either been destroyed or has been put to route, there can be no
occasion to exercise the right of private defence.
In order to find whether right of private defence is available or
not, the injuries received by the accused, the imminence of threat to his
safety, the injuries caused by the accused and the circumstances whether
the accused had time to have recourse to public authorities are all
relevant factors to be considered. …….”
7.11. Further the Hon'ble Supreme Court of India in the case law
reported in 2007 AIR SCW 2123 in Shahjajhan and others vs State Of
Kerala and another has further held as follows:
“ 24. The right of private defence is essentially a defensive
right circumscribed by the governing statute i.e. the IPC, available
only when the circumstances clearly justify it. It should not be be
allowed to be pleaded or availed as a pretext for a vindictive,
aggressive or retributive purpose of offence. It is a right of
defence, not of retribution, expected to repel unlawful aggression
and not as retaliatory measure. While providing for exercise of the
right, care has been taken in IPC not to provide and has not
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CRL.A(MD).No.869 of 2023
devised a mechanism whereby an attack may be a pretence for
killing. A right to defend does not include a right to launch an
offensive, particularly when the need to defend no longer
survived.”
7.12. In the case on hand, the weapon viz; knife in MO1 was
seized on the basis of confession from the accused leading to recovery as
per the evidence of Devaraj / P.W.6 corroborated by the investigation
officer / P.W.10 and the admissible portion of such confession and the
seizure mahazar of MO1 is marked through Devaraj / P.W.6 as Exhibit
P6 and P7, respectively. Notably, the accused had not sustained injury in
the occurrence but the deceased including the stab and cut injury. It is to
reiterate that the P.W.1 is a rustic witness and perusal of her evidence in
addition to the evidence of P.W.2 in entirety would negative the
contention of the accused in respect of his private defence. It is to
reiterate that the evidence of the occurrence witnesses viz; P.W.1 to
P.W.3 are cogent, reliable and trustworthy to inspire the confidence of the
Court in implicating the accused being armed with knife had wrongfully
restrained the deceased and inflicted multiple injuries to him and caused
criminal intimidation. Upon consideration of the evidence on record, this
Court finds that the appellant has not established the circumstances
giving rise to a reasonable apprehension of death or grievous hurt
warranting the exercise of the right of private defence extending to
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CRL.A(MD).No.869 of 2023
causing death. Accordingly, the plea of private defence raised by the
appellant is found to be baseless in the facts and circumstances of the
case. That being so, the facts and circumstances of the cited case law of
the Delhi High Court reported in 2007 Supreme (Del.) 105 in Dharam
Pal v. State of Delhi on behalf of defence side is not applicable to the
facts and circumstances of the case on hand.
8. Conclusion :
In view of the foregoing discussion and perusal of records, this
Court finds that the prosecution has established the guilt of the appellant /
accused beyond reasonable doubt for the offences punishable under
Sections 341, 302 and 506(ii) of the Indian Penal Code and the conviction
and sentence passed against him vide judgment dated; 30.06.2023 in
S.C.No.135 of 2019 on the file of the Principal District and Sessions
Court, Virudhunagar at Srivilliputhur is sustainable under law and
accordingly, the Criminal Appeal is dismissed. The bail bonds executed
by the appellant / accused shall stand cancelled and the Trial Court is
directed to secure the accused to undergo the remaining period of
sentence as per law.
(M.N.K.,J.) (N.G.N.,J.)
30-10-2026
NCC : Yes/No
Index : Yes/No
Internet : Yes/No
PAL
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CRL.A(MD).No.869 of 2023
To
1.The Principal District and Sessions Judge,
Virudhunagar at Srivilliputhur.
2.The Inspector of Police,
Seithur Police Station,
Virudhunagar District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Criminal Section(Records),
Madurai Bench of Madras High Court,
Madurai.
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CRL.A(MD).No.869 of 2023
M.NIRMAL KUMAR, J.
AND
N.GUNASEKARAN, J.
PAL
Pre-delivery order made in
CRL.A(MD).No.869 of 2023
30-10-2026
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