N.G. SREEDHARAN AND ANR.versusSTATE OF KERALA

                   N.G. SREEDHARAN AND ANR.                                  A
                                    v.
                          STATE OF KERALA

                          DECEMBER 13, 1995

             [M.K. MUKHERJEE AND B.N. KIRPAL, JJ.]                           B

      Indian Penal Code 1860 :

      Ss. 302/34 & 149. 143, 147,148, 341-Murder-Acquittal of all accused
as accused persons also sustained injurie:r-High Court reversing the acquittal C
of two of the accused-Convicting and sentencing them under
s.302/34-Upholding acquittal of others-On appeal conviction and sentence
recorded under s.302134 set asidl:-One accused convicted u/s 302 IPC
simpliciter and sentenced to life imprisonment

      The head load workers of Trichur Taluk belonged to two different D
trade Unions. The two deceased.brothers V and D belonged to one Union
and accused belonged to a rival Union. A dispute arose between the
members of the two Unions over unloading of a lorry and the work
stopped. V, being the treasurer of the Union accompanied by P.W. 1 went
to the Union headquarters to seek its advice. On their return Al called V E
aside under the pretext of discussing the issue; but was soon snrronnded
by members of the rival Union. An altercation followed and Al shouted
that V was the trouble maker and should be done away with. V brandished
a knife and tried to run away bot was caught and stabbed by Al. A2 beat
V with an arecanut split on various parts of the body. When D, the brother
of V rushed to his rescue, he was also stabbed by Al. Both the brothers V F
and D died soon after.

      The accused were charged with for offences under Ss. 143, 147, 148,
341, 302/147 IPC. The trial ended in acquittal of all ·the accused. State
preferred an appeal, and the High Court reversed the acquittal of Al and     G
A2 convicted and sentenced them under S. 302/34 IPC, but upheld the
acquittal of others. Hence this appeal by Al and A2.

      Partly allowing the appeal, this Court

     HELD : 1. Both the appellants were found to have sustained injuries H
                                 647
    648                  SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A when examined by the Assistant Surgeon of District Hospital. While Al
  sustained one penetrating wound 1 "x 1/2" on the right side of the chest A2
  sustained four, of which two were incised and the other two were penetrat-
  ing wounds. The eye-witnesses examined on behalf of the prosecution
  however did not offer any explanation as to how the two appellants
B sustained those stab injuries. Nonetheless their evidence discloses that
  when the altercation started between him and the appellants, V was found
  to brandish a knife which be had with him. Judged in that light the
  appellants were entitled to raise the plea of the right of private defence of
  their persons apprehending threat of assault with the knife so brandished
  in view of Section 102 IPC, which provides that right of private defence of
C the body commences as soon as a reasonable apprehension of danger to
  the body arises from an att •.":·t or threat to commit the offence ('assault'
  in the instant case) though the offence may not have been committed, and
  it continues so long as apprehension of danger to the body continues. The
  evidence further discloses that not only the threat was imminent but the
D apprehension of the two appellants of being assaulted by V was also a
  reasonable one-and indeed, it ultimately turned into a reality. Then again,
  considering the nature of injuries sustained by them, it cannot also be said,
  in view of Section 100 IPC, that they had exceeded their right of private
  defence in causing the death of V. Thus the convictiul. ::;! sentence of the
                                                            0




  two appellants for the murder of V cannot be supported.
E                                                          (652-F-H, 653-A-C]
          Deo Narain v. State of U.P., (1973] 1 SCC 341, relied on.

          2. It is the consistent case of the eye-witnesses that when V fell down
    on being assaulted by Al and A2, D who was sitting in a nearby tea shop,
F   rushed to his brother's rescue. Al then stabbed him with the knife as a
    result of which he fell down dead. There is not an iota of material on record
    to show that D had any weapon with him or that he was a party to the
    fracas that took place between the appellants and V earlier. Therefore,
    there is no reason to disbelieve the prosecution case as to the manner in
G   which D met with his death, more so, when the eye-witnesses account in
    this respect stand corroborated by the medical evidence. Al also cannot
    lay any claim that his apprehension of danger to his body continued even
    after V bad dropped his knife and himself fallen down, so as to entitle him
    to exercise his right of defence in assaulting D. [654-C-E]

H          3. There is no evidence on record to indicate that A2 stabbed D. In
                      N.G. SREEDHARAN v. STATE                          649

fact, it was not the specific case of A2 even that he had stabbed D. Be-sides, A
in discarding the prosecution case altogether, the trial court was much
influenced by the fact that only one knife was found at the spot, and
according to it, as that knife was dropped by V the conclusion was
inevitable that Al had no knife with him by which be could have assaulted
any of the two brothers. This finding is patently incorrect for P.W. 4 in his B
cross-examination categorically stated that when the knife fell down from
V's hand, he saw A6 (since acquitted) lifting it. The above evidence of P.W.
4 stands corroborated by that of P.W. 5 when he also stated in cross-ex-
amination that the knife which was brandished by V fell down and A6 took
it away. [654-H, 655-A·B]
                                                                               c
      4. The evidence of the Doctor (P.W. 9) who held post-mortem ex-
amination on the dead body of D, testified that he found on penetrating
incised wound in the midline of chest 5 cm. below the root 'or neck, 3 cm.
long horizontally and 5 c"l. deep. He opined that the injury was capable
of causing instantaneous death and that it could be caused by stabbing
with P '·nffe, like M.O. 1, which according to the eye-witnesses Al threw      D
away at the spot, and later seized by the Investigation Ollicer. Considering
the nature and situs of the injury, the attending circumstances and the fact
that it was inflicted without any provocation whatsoever it must be said
that the offence committed by Al is one of murder. [655·D·E]
                                                                               E
      5. The order of conviction and sentence recorded against Al and A2
under Section 302/34 for the murders of V and D is set aside and A2 is
acquitted is respect of thosr charges. Al is convicted under Section 302
IPC simpliciter for the murder of D and he is sentenced to suffer imprison·
men! for life. [655-F]
                                                                               F
      CRIMINAL APPELLATE JURISDICTION: Civil Appeal No. 263
of 1983.

     From the Judgment and Order dated 14.3.83 of the Kerala High
Court in Cr!. A. No. 21 of 1987.                                               G
      U.R. Lalit and M.P. Vinod for the Appellants.

      M.T. George for the Respondent.

      The following Judgment of the Court was delivered :                      H
    650                   SUPREME COURT REPORTS [19951SUPP.6 S.C.R.

A          M.K. MUKHARJEE : N.G. Sreedharan and V.K. Sudhan, the two
    appellants herein, (hereinafter referred to as Al and A2 respcct;.,ely)
    alongwith four others were placed on trial before the Session Judge,
    Trichur to answer charges under Sections 143, 147, 148, 341 and 302/149
    (two counts) I.P.C. The trial ended in an acquittal of all of them; and
    aggrieved thereby the respondent-State preferred an appeal. In disposing
B   of the appeal the High Court reversed the acquittal of Al and A2 an<l
    convicted and sentenced them under Section 302/34 I.P.C., while upholding
    the acc,uittal of others. Hence this statutory appeal at their instance. Shorn
    of details, the case for the prosecution is as under :

C       The head load workers of Trichur taluk, which includes village
  Adattu, own allegiance to different trade Unions. While Vincent and his
  brother Davis (the two deceased) belonged to one of those Unions the
                 • to a rival one. On December 9, 1979 a dispute between
  accused belonged
  the members of those two Unions over unloading of a lorry at Puranat-
D tukara Centre in the above village took such a violent turn that it had to
  return without unloading the materials. To seek advice of his leaders in the
  matter Vincent, who was the treasurer of their Union, went to their
  headquarters at Mundor on the following day, that is on December 10,
  1979, accompanied by Ashokan (P.W. 1). In the evening they returned by
  bus and alighted at the Puranattukara centre at or about 7.30 P.M Al, who
E was present there, called Vincent aside under the pretext of discussing the
  issue. He was then surrounded by some members of Al's Union and
  wrongfully restrained. In course of the altercation that followed Al shouted
  that Vincent was the trouble maker and he should be done away with. Then
  Al and another caught hold of Vincent. In an attempt to save bin.self
F Vincent brandished a knife which he had with him and managed to escape.
  The accused persons however chased him and ultimately succeeded in
  apprehending him at the gate of Pambungal Ramakrishnan. There Al
  stabbed him with a knife and A2 beat him with an arecanut split on various
  parts of his body. finding his younger brother a helpless victim of such
  attacks. Davis, who was nearby, rushed to his rescue but Al stabbed him
G also. Both the brothers died soon after.

          On that very night Ashokan (P.W. 1) lodged an information about
    the incident with the police and on that information a case was registered
    for the above two murders. Shri Muthalali (P.W. 13), Circle Inspector of
H   Crime took charge of investigation and after holding inquest upon the dead
          N.G. SREEDHARAN v. STATE [M.K MUKHERJEE, J.]                 651

bodies of Viocent and Davis, sent them for post-mortem examination. He A
seized some blood stained earth, a blood stained knife and an arecanut
spilt from the place of occurrence and sent them for chemical examioation.
After receipt of the reports of post mortem and chemical examioation and
completion of investigation he submitted charge-sheet.

      To prove its case the prosecution examined 12 witnesses and ex-         B
hibited certain documents. Of the witnesses examined Ashokan (P.W. 1,
Mohanan (P.W. 2), George (P.W. 3), Davis (P.W. 4) and Jose (P.W. 5)
were produced as eye-witnesses but P.W. 3 turned hostile. Besides, the
prosecution relied upon the evidence of the doctor who held post-mortem
exa.mination upon the two deceased and the reports of chemical examina-       C
tion which indicated presence of blood in the articles seized by the police
from the place of occurrence.

      In giving out his version of the incident Al staled, while being
examined under Section 313 Cr.P.C., that Vincent and Davis alongwith D
P.Ws. 1, 2, 4 and others came to the place where he was talking with A2.
Reaching there Vincent shouted that he would not permit him (Al) and
his associates to do the loading and unloading work at Puranattukara and
immediately thereafter Vincent stabbed him on his chest and then A2, on
both sides of his abdomen with a knife. When vincent made further
attempts to stab, AZ took away the knife from him. At that time Davis E
chocked the neck of AZ. He went on to say that both he and A2 then cried
out and hearing their cries the members of their Union rushed to the spot.
Thereafter there was a confrontation between the members of the two rival
Unions. Al specifically denied to have stabbed Viocent or Davis. A2 also
gave a similar statement; and further stated that after snatching away the F
knife from Viocent he stabbed him once or twice out of fear of instan-
taneous death. The appellants however did not adduce any evidence in
support of their respective pleas.

       On perusal of the judgment of the trial Court we find that the
principal grounds that weighed with it for recordiog the acquittal were, that G
the prosecution suppressed the fact that the accused persons also sustained
injuries io the incident; that non availability of a second knife at the scene
of occurrence discredited the entire prosecution case; that the defence
version that AZ inflicted the stab wounds on both the deceased was more
reasonable; and that the assertion of the eye-witnesses that Al stabbed H
    652                   SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A Vincent and Davis was not acceptable as the prosecution case about Al
    having a knife stood almost falsified.

          In reversing the order of acquittal passed in favour of the two
    appellants the High Court first held that the finding of the trial Court that
B   the eye-witnesses suppressed the fact that Vincent had a knife with him
    was factually incorrect for both P. Ws. 2 and 4 categorically stated that
    Vincent had a knife with him and that he was brandishing it. The High
    Court next hc!J that there was absolutely no basis for the trial Court to
    conclude that the prosecution attempted to suppress the injuries sustained
    by Al and A2. The High Court further observed that the trial Court's
C   finding about the non availability of another Knife was equally unsus-
    tainable for in an incident of the nature which resulted in death of the two
    victims it might not be possible for the prosecution to account for all the
    weapons used by the accused or by the victims in retaliation. After having
    found that findings of the trial Court to acquit the accused were wholly
D   unsustainable and perverse, the High Court dealt with and discussed the
    evidence of the eye-witnesses at length to conclude that both the appellants
    were guilty of the murder of the two brothers.

           This being a statutory appeal we have carefully looked into the entire
    evidence on record to ascertain whether the High Court was justified in
E   holding that the findings of the trial Court as against the appellants were
    perverse and reversing the same on that score. Before we proceed to
    consider the evidence of the eye-witnesses in that perspective we may at
    the outset point out that both the app•lhnt3 were found to have sustained
    injuries when examined by the Assistant Surgeon of District Hospital
F   Trichur in the night in question. While Al sustained one penetrating
    wound 1 "x 1/2" on the right side of the chest A2 sustained four, of which
    two were incised and the other two were penetrating wounds. The eye-wit-
    nesses examined on behalf of the prosecution however did not offer any
    explanation as to how the two appellants sustained those stab injuries,
    Nonetheless their evidence discloses that when the altercation started at
G   puranattukara centre between him and the appellants, Vincent was found
    to brandish a knife which he had with him. Judged in that light the
     appellants were en~itled to raise the plea of the right of private defence of
     their persons apprehending threat of assault with the knife so brandished
     in view of Section 102 1.P.C., which provides that a right of private defence
H    of the body commences as soon as a reasonable apprehension of danger
           N.O. SREEDHARAN v. STATE [M.K MUKHERJEE,J.j                     653

 to the body arises from an attempt or threat to commit the offence A
 ('assault' in the instant case) though the offence may not have been ·
 committed, and it continues so long as apprehension of danger to the body
continues, The evidence further discloses that not only the threat was
imminent but the apprehension of the two appellants of being assaulted by
Vincent was also a reasonable one - and indeed, it ultimately turned into B
a reality. Then again, considering the nature of injuries sustained by them,
it cannot also be said, in view of Section 100 !PC, that they had exceeded
their right of private defonce in causing the death of Vincent. For the
aforesaid reasons the convktiott and sentence of the two appellants for the
inutder of Vincent tannot be supported. In arriving at the above con-
clusions We have drawn sustenance from the following observations made C
by a 3 Judge Bench of this Court in Dea Narain v. State of U.P., [1973] 1
sec 347.
        "What the High Court really seems to have missed is the provision
        of law embodied in Sectio11102 I.P.C. According to that section          D
        the right of private defence of the body commences as soon as a
        reasonable apprehensio11 of danger to the body arises from an
        attempt or threat to commit the offence, though the offence may
        not have been committed, and such right continues so long as such
        apprehension of danger to the body continues. The threat, however,
       must re~sonably give rise to the present and imminent, and no remote E
       or distant danger. This right rests on the general principle that
       where a crime is endeavoured to be cortlll1itted by force, it is lawful
       to repel that force in self-defence. To say that the appellant could
       not only claim the right to use force after he had sustained a serious
       injury by an aggressive wrongful assault is a complete misunderstand- F
       ing of the law embodied in the above section. The right of private
       defence is available for protection against apprehended unlawful
       aggression and not for punishing the aggressor for the offence com-
       mitted by him. It is a preventive and not punitive right. The right
       to punish for the commission of offences vests in the State (which
       has a duty to maintain law and order) and not in private individuals. G
       If after sustaining a serious injury there is no apprehension of furtlu
       danger to the body then obviously the right of private defence would
       not be available. In our view, therefore, as soon as the appellant
       reasonably apprehended danger to his body even from a real threat
       on the part of the party of the complainant to assault him for the H
    654                  SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A           purpose of forcibly taking possession of the plots in dispute or of
            obstructing their cultivation, he got the right of private defence
            and to use adequate force against the wrongful aggressor in exer-
            cise of that right."

                                                           (emphasis supplied)
B
        The same conclusions cannot however be drawn for the assault on,
  and consequent death of, Davis. It is the consistent case of the eye-wit-
  nesses that when Vincent fell down on being assaulted by Al and A2 Davis,
  who was sitting in a nearby tea shop, rushed to his brother's rescue. Al
C then stabbed him with the knife as a result of which he fell down dead.
  There is not an iota of material on record to show that Davis had any
  weapon with him or that he was a party to the fracas that took place
  between the appellants and Vincent earlier. we do not, therefore, find any
  reason to disbelieve the prosecution case as to the manner in which Davis
  met with his death, more so, when the eye-witnesses' account in this respect
D stand corroborated by the medical evidence. Al also cannot lay any claim
  that his ap1mohension of danger to his body continued even after Vincent
  had dropped his knife and himself fallen down, so as to entitle him to
  exercise his right of defence in assaulting Davis. It appears that when in
  the trial Court the Public Prosecutor raised such a contention the trial
E Court rejected the same with the following words :
             "The submission of the learned Public Prosecutor is that even if
             the stabs on Vincent could be justified as an act of private defence
             there is no explanation as to why his brother Davis also could have
             been stabbed. The evidence of P.Ws. 1, 2, 4 and 5 is to the effect
F            that Davis came to the scene after the stabs were inflicted on
             Vincent and that the !st accused himself stabbed Davis. From the
             foregoing discussions, I have come to the conclusion that the
             probabilities are in favour of the defence version that it was the
             second accused who stabbed. The eye- witnesses would in one
             word say that it was the Isl accused who stabbed Davis also."
G
         The above conclusion of the trial Court is patently perverse for there
  is no evidence on record to indicate that A2 stabbed Davis. In fact, it was
  not the specific case of A2 even that he had stabbed Davis. Besides, as has
  already been noticed, in discarding the prosecution case altogether, the
H trial Court was much influenced by the fact that only one knife was found
          N.G. SREEDHARAN v. STATE [M.K. MUKHERJEE, J. J                 655

at the spot, and according to it, as that knife was dropped by Vincent the A
conclusion was inevitable that Al had no knife with him by which he could
have assaulted any of the two brothers. This finding is patently incorrect
fot P.W. 4 in his cross-examination categorically stated that when the knife
fell down from Vincent's hand, he. saw A6 (since acquitted) lifting it. The
above evidence of l'.W. 4 stands corroborated by that of P.W. 5 when he
also stated in crciss-exa111ination that the knife which was brandished by B
Vincent fell down and A6 took it away.

       Now thai we have found that, though Al and A2 cannot be held
liable for the murder of Vincent, Al is liable for having caused the death
of Davis of by stabbing him with a knife, we have to ascertain what offence C
Al committed thereby. fhe evidence of Dr. KC. Prakasan (P.W. 9) who
held post-mortem examination on the dead body of Davis, testified that he
found one penetrating incised wound in the midline of chest 5 cm. below
the root of neck, 3 cm. long horizontally and 5 cm. deep. He opined that
the injury was capable of causing instantaneous death and that it could be
caused by stabbing with a knife, like M.0.1, which according to the eye- D
witnesses Al threw away at the spot, and later seized by the Investigation
Officer. Considering the nature and situs of the injury, the attending
circumstances and the fact that it was inflicted without any provocation
whatsoever it must be said that the offence committed by Al is one of
murder.                                                                     E
      On the. conclusions as above we allow this appea_l in p~r.t by setting
aside the order of conviction and sentence recorded against. Al & A2
under Section 302/34 for the murders of Vincent and Davis and acquit A2
in respect of those charges, but convict Al under Section 302 I.P.C.
simpliciter for the murder of Davis and sentence him to suffer imprison-       F
ment for life.

     · Since both the appellants are on bail A2 will stand discharged form
his bail bond and Al will surrender to his bail bond to serve out the
remainder of the sentence.
                                                                               G
G.N.                                                Appeal partly allowed.