Holding

The appellants failed to prove possession of the land and trespass by the deceased, rendering the private defence plea untenable and upholding the convictions based on credible eyewitness and medical evidence.

Summary

The deceased Kumararaja and the appellants were co‑parceners disputing ownership of a piece of agricultural land. On the day of the incident the deceased went to plough the land, was threatened by the appellants, and asked two villagers (PW‑I and PW‑II) to accompany him. While the deceased was ploughing, the appellants, armed with knives, attacked and killed him. The trial court convicted the appellants based on the eyewitness testimony of PW‑I and PW‑II, corroborated by medical evidence, and the High Court affirmed the convictions. The appellants appealed, contending that the prosecution had not proved ownership of the land, that the missing case diary warranted an adverse inference, and that they were entitled to claim private defence of property. The Supreme Court held that the burden to prove possession and trespass lies on the accused; they failed to discharge it, and the claim of private defence was untenable. The Court found the eyewitness testimony reliable, rejected the argument for adverse inference, and dismissed the appeal.

Issues considered

The prosecution must prove that the deceased was in possession of the disputed land and that the appellants were not entitled to claim private defence.
Whether the non‑production of the case diary or general diary warrants an adverse inference against the prosecution.
Whether the eyewitness testimony of PW‑I and PW‑II is reliable and sufficient to sustain conviction.

Legislation cited

Indian Penal Code, 1860s. 109, s. 147, s. 148, s. 149, s. 302, s. 341, s. 447

Subjects

private defenceland disputemurderburden of proofeyewitness testimonycase diaryIndian Penal Codepossessiontrespass

Judgment

ASHOK KUMAR AND ORS. A
v.
STATE OF TAMIL NADU

MAY 5, 2006

[S.B. SINHA AND P.P. NAOLEKAR, JJ.] B

Penal Code, 1860:

s.302-Deceased murdered while he was ploughing land in dispute-
Accused raising plea of right of private defence to the land property-Held: C
Not acceptable as the burden to prove that accused were in possession of land
and deceased trespassed on to it, was on accused which they failed to discharge.

Criminal trial:

Prosecution witness related to both accused and deceased-Not shown D
to be otherwise inimically disposed toward accused-His evidence also
' corroborated by medical evidence-Held: Conviction based on his evidence
cannot be said to be erroneous-Evidence.

According to prosecution, appellants-accused had been causing E
disturbance in the possession of the land belonging to the deceased. On
the fateful day, deceased went to the disputed land and began to plough
the land to which appellants objected and threatened him. Deceased
informed PW-I and PW-2 about the threats received and they suggested
to refer the matter to Panchayat. Deceased did not accept the suggestion
and instead requested them to accompany him to the disputed land. When F
they entered the land and the deceased started ploughing, the appellants
came equipped with weapons and attacked the deceased. He succumbed
to injuries. \

PW-I and 2 ran from the spot. The police station was 8 Kms. away.
PW-I walked for 3 hours to reach the police station and lodged FIR which G
was recorded by PW-10, the head constable.

Sessions Judge upon relying on evidence of eye-witnesses (PW-1 and
2) ordered conviction. High Court upheld the same.
947 H
948 SUPREME COURT REPORTS [2006] SUPP. 1 S.C.R.

A In appeal to this Court, appellant contended that the prosecution
failed to prove that the disputed land belonged to the deceased; that
another report was lodged prior to the lodging of FIR by PW-I and
General diary was not produced by prosecution hence an adverse inference
ought to have been drawn by Courts below and that High Court
committed a serious error in placing reliance upon evidence of PW-I on
B the premise that he was a disinterested witness and that as the title of land
was disputed, the courts below ought to have considered the question as
to whether in a situation of this nature, appellants could have exercised
their right of private defence in regard to the property. •

C Dismissing the appeal, the Court

HELD: I. Both the parties were related to each other, the decea~ed
being a co-parcener of the appellants and the parties had been disputing
over the ownership of the !and. PW-I was related to both the parties.
Nothing has been brought on record to show that he had anything to do
D with the land in question and for any reason, would side with the deceased.
It has also not been established that PW-I was otherwise inimically
disposed toward the accused. Both PW-I and PW-2 made categorical ,
statements to the effect that they had gone to the scene of occurrence with
a view to prevent the appellants from causing obstructions to the ploughing
E of land by the deceased. They were requested to do so by the decea!ed. In
fact, PW-1, had advised the deceased to take the matter to the Panchayat
so that the dispute between the parties could be resolved. PW-I, in his
deposition, made detailed statements as to how and in what manner the
deceased was attacked with knives by all the appellants. He had
furthermore stated the manner in which the injuries were caused to the
F deceased by each one of them. He had also identified the weapons of assault
in Court. The statements made by the said witness stand corroborated by
the medical evidence. PW-2 also supported him in all material particulars.
The fact that he was the author of the First Information Report is not
disputed. Having found the deceased to have expired at the place of
G occurrence, he only went to his house for putting on his shirt and started
for the police station. He had to walk 8 kms. Three hours must have been
taken to reach the police station. It has further not been denied or disputed
that the Investigating Officer (PW-I I) reached the place of occurrence at
about 12.30 p.m. on the same date and started investigation. The statement
of PW-10 who recorded the First Information Report has also been taken
H by the Investigating Officer. It may be true that the Investigating Officer
ASHOK KlJMAR v. STATE OF TAMIL NADU 949

might not have made any investigation as regards the ownership of the A
land, but from his evidence it is evident that he had been informed and
he proceeded on the basis that the land in question had been in possession
of the deceased. The Investigating Officer on the date of occurrence did
not find the appellants in the village. They were arrested after a few days
from another village. The appellants did not contend before the courts B
below that they had been in possession of the land. If they intended to raise
a right of private defence in regard to the property, it was for them to
prove that they were in possession of the land and the deceased trespassed
thereinto. No contention as regard the exercise of right of private defence
in regard to their person had thus been or could be raised.
(953-D-H; 954-A-C; E-G( C

Hafiz v. State of U.P., (2005( 12 SCC 599, referred to.

2. The deceased was not armed and was all alone when he first
started ploughing the land. Only when he was obstructed from doing so, D
he approached PW-I and PW-2, Evidence of PW-1 appears to be natural.
He is not only said to be an eye-witness, he walked all the way to the police
station to lodge the First .Information Report as public transport was not
available. In the First Information Report, he categorically stated that PW-
2 was also an eye-witness. The Investigating Officer (PW-11) had also
found the injuries on the person of the deceased. Despite some minor E
contradictions, both the trial Judge and the High Court placed reliance'
upon the evidence of PW-1 and PW 2. There is no reason to differ with
their opinion. (955-B-DJ

3. It is true that the Trial Judge had recorded a contention raised p
on behalf of the accused that despite an application having been filed by
the accused, the prosecution had failed to produce Case Diary and General
Diary relating to the date of occurrence, maintained at the Valathi Police
Station. When however questioned, he could not point out froin the records
of the case that any such application was filed or any order had been
passed by the Trial Judge calling for the Gener~! Diary from the police G
station. The question of drawing an adverse inference against the
prosecution for non-production of the Case Diary or the General Diary
would have arisen had the Court passed an order being satisfied that the
prosecution intended to suppress some facts which were material for the
purposes of arriving at the truth or otherwise of the prosecution case. If H
950 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A no such application had been filed and no order thereupon had been passed
by the Court, the question of drawing any adverse inference against the
prosecution would not arise. 1955-D-GI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1533
B of 2004.
From the Judgment and final Order dated 16.6.2004 of the Madras
High Court in Criminal Appeal No. 287/1996.
WITH
Criminal Appeal No. 1174 of 2005.
c
V. Krishna Murthy, P.R. Kovilan and Anjani Aiyagari for the Appellants.

Abhay Kumar, Subramonium Prasad and Jaikishor for the Respondent.

The Judgment of the Court was delivered by
D
S.B. SINHA, .J. The appellants herein, namely, Ashok Kumar, Sankar
and Babu (in Criminal Appeal No. 1533 of2004) and Selvakumar (in Criminal
Appeal No. 1174 of 2005) (A-1, A-3, A-4 and A-2 respectively) along with
their father Chakravarti Nayinar (A-5), mother Gunasekariammal (A-7) and
E uncle Rajan (A-6) stood trial for commission of offences under Sections 147,
148, 341, 447, 302 read with Section 109 read with Section 149 of the Indian
Penal Code (!PC), inter a/ia, for causing death of one Kumararaja.

The accused as also the deceased Kumararaja were residents of Ammeri
Village, Taluk Gingee. They had their agricultural lands in the said village.
F The accused were claiming share of the land belonging to said Kumararaja.
They had allegedly been causing disturbances in the possession of the lands
belonging to Kumararaja as a result whereof some criminal cases were pending
against A-5 and A-6. A-5 and A-6 with a view to attend the said criminal
cases left the village at about 6.00 a.m. on 29.10.1993. They had allegedly
G instructed the appellants before leaving the village to see that the deceased
did not plough the land in question and if despite warning he would do so
he should be killed. At about 8.30 a.m., the deceased Kumararaja went to the
said land and began ploughing the same which was objected to by the
appellants herein. He reported the matter to Elanchziyan (PW- I) and Devabalan
H (PW-2) who advised him to convene a Panchayat so that the dispute between
ASHOK KUMAR v. STATE OF TAMIL NADU [S.B. SINHA, J.] 951
the parties may be settled, in response whereto the deceased allegedly told A
them that the matter need not be referred to Panchayat as the land belonged
to him. He had, therefore, requested both the said PWs to accompany him to
the land in question and ask the appellants not to cause any obstruction in his
ploughing the land. They complied with the said request of the deceased.
Further case of the prosecution is that as soon as the deceased entered into
the disputed land and tried to plough, Gunasekariammal (A-7) allegedly B
brought four Koduval knives and handed over each one of them to the
appellants and instigated them to kill the deceased whereupon they attacked
the deceased. The deceased fell down. PW-I and PW-2 cried out seeing the
incident whereupon they were also threatened. Thereafter, they ran away
with the weapons. PW-I and PW-2 came near the deceased and found C
Kumararaja dead. The village came within the jurisdiction of Valathi Police
Station. It was situated at a distance of about 8 kms. from the village. PW-
1 walked all the way to the Police Station. He reached the police station at
about 11.30 a.m. At that time, Head Constable Ansar Sherif (PW-IO) was
present. He was although attached to Gingee Police Station, at the relevant
point of time having been instructed by Inspector Mohan Doss Michael (PW- D
11), he was performing his duties at the Valathi Police Station. Head Constable
..• (PW- I0) recorded the statement of PW-I. A copy of the First Information
Report was sent to the Inspector (PW-I I) who came to the scene of occurrence
at about 12.30 p.m. !n the meantime, PW-I and PW-2 had also reached the
place of occurrence. The statements of PW-I, PW-2 as also of those who E
were witnesses to Mahazar were recorded. Post-mortem examination on the
dead body was conducted by Dr. Marimuthu (PW-9) on 30.10.1993. The
following injuries were found on the dead body of the deceased:

(I) Incised wound (cut wound) across the top of the head, 15'x4'.0
in deep in brain, brain incised to about I cm depth, subdural F
haematoma about I00 cc on the left parietal area.
(2) Oblique incised wound in the midline of the head 8' x 2' on brain
deep.
(3) Oblique incised wound on the right side parental area 17' x 2' x
1-1/2' cm. G
(4) Antere posterior incised wound on the left side involving 7x2xl
cm.
(5) Antere posterior incised would on the right side frontal area,
4xlxl cm.
H
952 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A (6) Cut injury with clear margin on the left hand running through
distal ends of the 2,3,4 & 5th bones removing (amputating) 2, 3,
4 & 5th bone. Skin is attached to main part of the hand.
(7) Horizontal abrasion on the left shoulder I5x I cm.
(8) Abrasion on the left side neck 4xl cm.
B
(9) Abrasion on the back of right forearm 2x I cm.

According to the doctor (PW-9) . the injuries were ante-mortem in nature and
were possible to have been caused by a sharp-edged knife or Koduval knife.
Upon completion of the investigation, a charge sheet was filed against all the
C accused.

Before the learned Sessions Judge, inter a/ia, a plea was taken that
another First lnfonnation Report had been lodged in regard whereto an entry
had been made in the General Diary. However, the same had not been
produced. The learned Sessions Judge upon consideration of the evidences
D brought on record including those of the eye-witnesses, namely, PW-I and
PW-2 found the prosecution case to have been proved beyond all reasonable
doubt and recorded a judgment of conviction against all the accused persons.
On an appeal being preferred before the High Court, the High Court did not
believe that part of the prosecution case involving A-5 and A-6 who admittedly
E had left the village at 6.00 a.m. on 29. I0. I993 as also that of A-7 who
allegedly had come to the scene and distributed the weapons to the appellants
herein. They were, therefore, acquitted. During the pendency of the appeal
before the High Court, A-6 expired and his appeal thus was held to have
abated. The appeal filed by the appellants herein before the High Court,
however, was dismissed.
F
Mr. V Krishnamurthy, the learned counsel appearing on behalf of the
appellants, in support of the appeals, inter a/ia, submitted that keeping in
view the genesis of the occurrence it was obligatory on the part of the
prosecution to prove that the land in question belonged to the deceased.
Drawing our attention to the statements made by the Investigating Officer,
G the learned counsel would submit that admittedly no witness was examined
to establish the ownership and possession of the deceased over the land in
question and the prosecution cannot be said to have proved its case. It was
further submitted that the General Diary having not been produced, which
was called for by the appellants with a view to show that another Report had
H

•
ASHOK KUMAR v. STATE OF TAMIL NADU [S.B. SINHA. J.) 953
also been lodged prior to the lodging of the First Infonnation Report by PW- A
I and the same having not been produced by the prosecution, an adverse
inference ought to have been drawn by the learned courts below. Mr.
Krishnamurthy urged that the prosecution has further not been able to prove
that the Head Constable PW-10 who was admittedly attached to the Gingee
Police Station, was at the relevant point of time asked by the Inspector PW- B
11 to perfonn his duties at Valathi Police Station. It was furthennore contended
that the High Court committed a serious error in placing reliance upon the
evidence of PW-I on the premise that he was a disinterested witness and had
nothing to do with the dispute between the parties although it had been
brought on record that the younger sister of the deceased was married to his
sister's son. The learned counsel urged that in a case of this nature where the C
title of the land was disputed, the learned courts below should have considered
the question as to whether in a situation of this nature the appellants could
have exercised their right of private defence in regard to the property.

It is not in dispute that both the parties were related to each other, the
deceased being a co-parcener of the appellants. It is furthermore not in dispute D
that the parties had been disputing over the ownership of the land. The
appellants had been disputing the absolute ownership of the deceased in
regard to the land in question on the ground that they were also co-owners
thereof. PW-I was, thus, related to both the parties. Nothing has been brought
on record to show that he had anything to do with the land in question and E
for one reason or the other he would side with the deceased. It has also not
been established that PW- I was otherwise inimically disposed toward the
accused. Both PW-I and PW-2 made categorical statements to the effect that
they had gone to the scene of occurrence with a view to prevent the appellants
from causing obstructions to the ploughing of land by the deceased. They
were requested to do so by the deceased. In fact, PW-I, as would appear F
from his evidence, advised the deceased to take the matter to the Panchayat
so that the dispute between the parties could be resolved. He did not pay any
heed to his advice and insisted that he had a right to plough the land as the
same belonged to him. PW-I, in his deposition, made detailed statements as
to how and in what manner the deceased was attacked with knives by all the G
appellants. He.had furthermore stated the manner in which the injuries were
caused to the deceased by each one of them. He had also identified the
weapons of assault in Court. The statements made by the said witness stand
corroborated by the medical evidence. PW-2 also supported him in all material
particulars. The fact that he was the author of the First Infonnation Report
H
954 SUPREME COURT REPORTS (20061 SUf'P. I S.C.R.

A is not disputed. Having found the deceased to have expired at the place of
occurrence, he only went to his house for putting on his shirt and started for
the police station. He had to walk 8 kms. Three hours must have been taken
to reach the police station. It has further not been denied or disputed that the
Investigating Officer (PW-I I) reached the place of occurrence at about 12.30
p.m. on the same date and started investigation. The statement of PW-10 who
B recorded the First Information Report has also been taken by the Investigating
Officer.

It may be true that the Investigating Officer might not have made any
investigation as regards the ownership of the land, but from his evidence it
C is evident that he had been informed and proceeded on the basis that the land
in question had been in possession of the deceased. The prosecution story is
that the deceased had been ploughing the land and thus his possession thereover
cannot be disputed. PW-11 had drawn a rough sketch which was marked as
Ex. P.13. SI. Nos. I to 7 of the said sketch indicate the land of the deceased
and his brother Raj Kumar and SI. No. 3 thereof indicates the place where
D the dead body was found being Survey No. 12/6. The learned trial Judge has
categorically arrived at a finding that from the evidence on record it was
established that the occurrence took place on the land of the deceased being
Survey No. 12/6 in the centre of Kumararaja's Karambu land, Kumararaja's
own land being situated on the West of that land and shown in SI. No. 4 of
E the said sketch (Ex. P.13 ).

The Investigating Officer on the date of occurrence did not find the
appellants in the village. They were arrested after a few days from another
village.

F The appellants herein before the court below did not contend that they
had been in possession of the land. If they intended to raise a right of private
defence in regard to the property, it was for them to prove that they were in
possession of the land and the deceased trespassed thereinto. No contention
as regard the exercise of right of private defence in regard to their person had
thus been or could be raised.
G
In Hajiz v. State of UP., [2005] 12 SCC 599, this Court categorically
observed :

"It may be true that the right of private defence need not
specifically be taken and in the event the court on the basis of the
H
ASHOK KUMAR v. STATE OF TAMIL NADU [S.B. SINHA, J.] 955
materials on record is in a position to come to such a conclusion, A
~
despite some other plea having been raised, that such a case had been
made out, it may act thereupon ....

Mutually destructive defences taken by the accused persons would
also go a long way to disbelieve their story .... "
;. B
The deceased was not armed and was all alone when he first started
ploughing the land. Only when he was obstructed from doing so, he approached
PW-I and PW-2. Evidence of PW-I appears to be natural. He is not only said

. to be an eye-witness, he walked all the way to the police station to lodge the
First Information Report as public transport was not available. Jn the First
Information Report, he categorically stated that PW-2 was also an eye-witness. c
The Investigating Officer (PW-I I) had also found the injuries on the person
of the deceased. Despite some minor contradictions, both the trial Judge and
the High Court placed reliance upon the evidence of PW-I and PW-2. We do
not find any reason to differ with their opinion.

Submission of Mr. Krishnamurthy that another First Information Report
D
was also lodged earlier, is based only on a suggestion made to PW-10. PW-
I0, in his deposition, categorically denied that even before lodging the
complaint Ex.P.1, another complaint was lodge.d at Valathi Police Station. It
is true that the learned trial Judge had recorded a contention raised on behalf
of the accused that despite an application having been filed by the accused, E
the prosecution had failed to produce Case Diary and General Diary relating
to the date of occurrence of the Valathi Police Station. When however
questioned, the learned counsel could not point out from the records of the
case that any such application was filed by the accused or any order had been
passed by the learned trial Judge calling for the General Diary from the
police station. The question of drawing an adverse inference against the F
prosecution for non-production of the Case Diary or the General Diary would
have arisen had the Court passed an order being satisfied that the prosecution
intended to suppress some facts which were material for the purposes of
arriving at the truth or otherwise of the prosecution case. If no such application
had been filed and no order thereupon had been passed by the Court, the G
question of drawing any adverse inference against the prosecution would not
arise. We have noticed hereinbefore that PW-I 0 made a categorical statement
to the effect that prior to the lodging of the First Information Report, no other
./j
Report had been lodged. If that be so, the question of production of any
document did not arise unless it had been pointed out by the accused with
" H
956 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A reference to the number or the person who made such report as to the existence f'
or recording of any other case in the General Diary. Even no suggestion to
that effect has been given to PW- I. We, therefore, have no hesitation to reject
the said contention.

We are, for the reasons aforementioned, of the opinion that the learned
B trial Court and the High Court having considered the prosecution case from
all angles, no case has been made out for our interference therewith. The
appeals are, therefore, dismissed.

D.G. Appeal dismissed. ..

-

...