P.D. PUSHPARAJANversusSTATE OF KERALA

A                            P.O. PUSHPARAJAN
                                        v.
                              STATE OF KERALA

                              DECEMBER 2, 1992

B                [J.S. VERMA, YOGESHWAR DAYAL AND
                          N. VENKATACHALA, JJ.]

          Indian Penal Coile 1860: Sections 302, 324 r/w 34 and 97-Murde,..-
    Defmce by accused-Stealing by deceased and heated exchange of words and
C   use of Chopper by deceased-Not proved-Right of private defence rejected-
    Finding of guilt and award of sentence-lnterferelice with.

          The two appellants along with two others were tried for the murder
    of one 'D' and were convicted by the Sessions Court for offences under
    Sections 302 and 324 IPC read 1 with S.34 IPC and each of tkem was
D   sentenced to undergo in;tprisonment for life.

           On Appeal, the High Court declined to interfere with the finding of
    guilt recorded by the Sessions Court as also with the sentence awarded.               A




E         Being aggrieved by the High Court's judgment, two of the four
    convicts preferred the present appeals.
                                                                                     )i
                                                                                      )

          It was contended that in view of the eye witness account that A-3 gave
    beatings with stick to the deceased, his conviction should have been altered
    to one under S.324 IPC and sentence imposed for having committed that
F   offence only; and that the appellants had to stab and beat the deceased to
    save their own lives in exercise of their right to private defence as the
    deceased was found stealing plantain bunches and ginger from the land of
    A-2 and when confronted he tried to cut A-2 with a chopper in his hand:

          Dismissing the appeals, this Court
G
        HELD: 1. On consideration of the material on record it is found that
  there is no good reason which would warrant interference with the finding
  of guilt of the accused recorded by both the courts below. Consequently,
  sentence awarded to each of them does not call for interference.
H                                                            [315-H; 316-A]
                                                                                   •':a..
                                        310
                     P.D. PUSHPARAJAN v. STATE                         311

      1.2. A.3 beating deceased with a stick is said to have taken place after A
the deceased was stopped and stabbed by A-1 and A-2. By appreciating the
said evidence relating to the role played by A-3 in the company of A-1, A-2
and A-4 in bringing an end to the life of the deceased as given by P.W.1
and the corroborating evidence as given by P.W.2 another eye-witness to
the occurrence of the incident along with other evidence placed on record,
both the courts below have rightly fo1:1nd A-1 to A-4 guilty of having
                                                                               B
committed the offences under section 302 and section 324 I.P.C. read with
section 34 thereof, with which they were charged. (315-F, G]

      1.3. The Sessions Court did not accept the statement that the
deceased had cut two plantain bunches and kept them with him while he C
had uprooted some ginger in the land of A-2. It did not also believe about
the thieving by any body of plantain bunches and ginger from the land of
A-2 where the incident had occurred, and it stated that if plantain bunches
had been in fact cut and kept with the deceased the Investigating Officer
who prepared the scene mahazar, would not have missed the same. The
theory of private defence set up by A-4, as the reason for inflicting stab D
injuries by A-1 and A-2 on the deceased was, therefore, discarded by it.
The High Court also refused to accept the submission having regard to
the scant material available on record. It was pointed out by the High
Court that the evidence in the case showed that the ginger on the land
being hardly of two months' crop was not ripe for harvest and there were E
no plantains in the land which had yielded bunches, and therefore there
was no question of deceased going to the place of occurrence of incident
to commit theft. On the other hand, it was found from evidence on record
that the deceased was caught by the accused in the land of A-2, when he
was crossing the place to reach his sister who ·was standing along with her
husband and crying out for him. Thus, the right of private defence said to F
have been exercised by the accused is rejected. (316-F-H; 317-A-D]

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.57 of 1988.
                                                                             G
     From the .Judgment and Order dated 6.4.1984 of the Keral.a High
Court in Cr!. A. No.103 of 1982.

                   WITH

      Criminal Appeal No.248 of 1986.                                        H
    312                  SUPREME COURT REPORTS (1992] SUPP. 3 S.C.R.

A        P.O. Sharma, (Amicus Curiae), P.N. Puri and Ms. Laxrni Arvind_
    (Amicus Curiae) (N.P.) for the Appellant.

          M.T. George-for the Respondent.

          The Judgment of the Court was delivered by
B
          VENKATACHALA, J. Pushparajan, the appellant in Criminal Appeal
    No.57of1988 and Murali, the appellant in Criminal Appeal No.248of1986
    were respectively Accused-3 and Accused-4 in Sessions Case No.112 of
    1"981 in the Sessions Court of Quilon. They along with Accused-1 and
C Accused-2, after trial, were convicted for offences under sections 302 and
    324 I.P.C. read with section 34 thereof and each of them was sentenced to
    undergo imprisonment for life by Judgment dated February 12, 1982 of the
    Sessions Court. All the accused preferred a common appeal from that
    judgment before the High Court of Kerala, which by its judgment dated
 - April 6, 1984 dismissed that appeal by affirming the judgment of the
D · Sessions Court. The present appeals are filed by Accused-3 and Accused-4, .
    individually and separately, on special leave.

          The case of the prosecution was this -
                                                                                  (
          That at about 11 P.M. on the moon-light night of July 18, 1981
E Accused 1 to 4 along with three others, armed with deadly weapons,              \
    formed themselves into an unla'\\-ful assembly with the common object of      \
    murdering one Divakaran. They, by pelting stones on the house of
    Divakaran made him to come out of his house, attacked him, stabbed him
    with daggers and beat him with sticks. The injuries so inflicted on him by
F   A-1 to A-4 made him fall on the ground and succumb to those injuries in
    a short-time thereafter while his brother-in-law Sivaprasad, P.W.l and his
    sister Ponnamma, P.W.2 and others who had gathered there were attempt-
    ing to remove him to a nearby hospital for treatment by securing a motor
    car. P.W.1, P.W.2 and-others, who had gathered there placed the body of
G   the deceased Divakaran in a compound adjacent to the house of P.W.2 till
    police, who were to be. informed of the death, could reach the place.

          By 7.30 A.M. on July 19, 1981, the next day, the Sub-Inspector of
    Po~ke at Adoor Police Station, who received the information of the inci-
  denf' ')"om P.W.l, recorded the First Information statem~nt and registered
H the crirne. The investigation of the crime is, thereaftre, done by P.W.14,      .,_
             P.D. PUSHPARAJAN v. STATE [VENKATACHALA, J.]                313

    the Circle Inspector of Police of the same stacion. ·He, on completion of A
    the investigation, laid the charge-sheet against Accused-1 to 7 for the
    crime, before the Judicial First Class Magistrate, Adoor, who committed
    the case to the Sessions Court, Quilon for trial.

          In the trial, while 14 witnesses were examined, 16 exhibits were
    marked and 7 M.Os. were. produced in support of the prosecution case, 8    B
    exhibits were marked in support on the defence of the accused.

           P.W. 1, who is the husband of Nalini, the sister of the deceased
    Divakaran, gave evidence as an eye-witness to the occurrence of the
    incident. He is examined as the main witness to support the case of the    c
    prosecution inasmuch as it is he who had given to the Police the first
    information relating to the occurrence of the incident. According to his
    evidence, at about 11 P .M. on the fateful night, he having had his dinner
.   in the house of his second wife Nalini, when was in the vicinity of the house
    of the deceased Divakaran on his way to the house of his first wife D
    Bhargavi, found A-2, A-3 and A-4 pelting stones on the house of Divakaran
    and heard cries of Divakaran's wife, Karthyayani and her children from
    that house. Ponnamma, P.W.2, the sister of Divakaran and her husband
    Krishnankutty residing in the house situated immediately to the east of
    Divakaran's house, who also heard the cries of Divakaran's wife and her
    children, came out into the courtyard of their house. By then, he saw A-1, E
    A-5, A-6 and A-7 standing at the corner of A-2's property. When a stone
    out of the stones which A-2, A-3 and A-4 were pelting on the house of
    Divakaran struck Ponnamma, P.w:2, she is said to have given a loud cry.
    Hearing her cry, Divakaran is said to have rushed toward her. But he has
    come to be chased by A-2, A-3 and A-4. Nalini, the second wife of P.W.1, F
    who was in her house in the neighbourhood, on hearing the cries, is said
    to have run upto her husband standing near the house of Divakaran, and
    cried out aloud. That cry having drawn the attention of her brother,
    Divakaran, he is said to have attempted to reach his sister Nalini by
    crossing along the western corner of the property of A-2. Divakaran, it is
    said, was not allowed to reach Nalini because of the obstruction offer by G
    A-1, A-5, A-6 and A-7. Divakaran is said to have been stabbed then in his
    stomach and on the nap of his neck by A-1 with a dagger. He is also said
    to have been stabbed on the left side of his neck and on his le~t and right
    shoulders by A-2 with another dagger. He is said to have been further
    beaten by A-3 and A-4 with sticks while A-5 brandishing his chopper is H
    314                   SUPREME COURT REPORTS (1992) SUPP. 3 s.c".R.

A   said to have prevented· anyone going for the rescue of Divakaran. All the
    accused are said to have left the place of occurrence of the incident,
    immediately thereafter, saying "Divakaran's affair is over and we will go
    away". P.W.1, P.W.'.2, Balan, brother of Divakaran, Nalini, Divakaran's
    sister and others who had gathered at the place, it is said, tried in vain to
    save the life of Divakaran, as he succumbed to the severe injuries, which
B   had been inflicted upon him by Accused-1 to Accused-4. This evidence
    given by P.W.1 is corroborated in all material particulars by another
    eye-witness to the occurrence of the incident, namely Ponnamma, P.W.2.

           After completion of recording of the said evidence of P.W.1 and
C   P.W.2 and other witnesses on various aspects of the case and of placing of
    all the material by the prosecution in support of its case and after marking
    of documents for the defence, all the accused are examined by the Sessions
    Court under section 313 Cr. P.C. and their statements are recorded. A-2
    in his statement has admitted about the place of occurrence of the incident
D   alleged by the prosecution and stabbing of the deceased Divakaran by A~ 1
    and himself.

          According to P.W.1, A-4 had been forced by the deceased
    Divakaran, to give the share of his sister Janamma in the property in his
    possession a few days earlier to. the incident. Cheriyankunju, P.W.3 has
E   revealed in the course of his cross-lfXaQiination on behalf of the accused
    that there were certain criminal cas~s which had been going on between
    the deceased Divakaran's people on the one hand and A-3 Pushparajan's
    people on the other hand, before A-4 had been asked to give away from
    the property in his possession the share of his sister Janamma. The role
F   played by Divakaran in making A-4 to give the share of Janamma, out of
    the property in his possession, it is said, was the immediate provocation for
    the ganging up of A-4 along with other accused to put an end to the life
    of Divakaran. It has come in the evidence of Ponnamma, P.W.2 that A-1
    and A-3 were the children of A-5 and A-2, A-5 and A-6 were the brothers
    of Meenakshi, the mother of A-4. The suggestion made to P.W.2 in the
G   course of her cross-examination that there was a complaint of agricultural
    produce having been stolen from the property where the incident occurred
    is denied by her.

         The Sessions Court which examined the evidence of P.Ws.1, 2 and 3
H   and also the evidence of other witn~sses including that of the evidence of
         P.D.PUSHPARAJAN v. STATE[VENKATACHALA,J.]                      315

the Investigation Officer, P.W. 14 and the medical evidence of P.W.7, Dr. A
Drishnakumari Amma along with the documentary evidence in the case
and the material objects produced before it, on a proper appreciation of
the same, found A-1 to A-4 guilty of the offences under sections 302 and
324 I.P .C. read with section 34 thereof, convicted them for those offences
and sentenced each of them to undergo imprisonment for life.
                                                                               B
      The High Court, which heard the common appeal of all the accused,
who were convicted and sentenced by the Sessions Court, on a proper
reappraisal of the entire evidence on record, declined to interfere not only
with the finding of guilt of the accused recorded by the Sessions Court but
also with the sentenced awarded to each of the accused on that account.        c
       It was submitted by the learned counsel appearing for the appellant
Pushparajan, A-3 that both the courts below should not have found him
guilty of the offence under section 302 I.P.C. when the overtacts attributed
to him by P.W.l and P.W.2, the eye-witnesses to the occurrence of the D
incident, were the beatings given by him with a stick to Divakaran and
hence his conviction has to be altered to an offence under section 324 1.P .C.
and sentence imposed for having committed that offence only. The submis-
sion, in our view, cannot be accepted. A-3 is the brother of A-1, who even
according to the statement of A-2 made under section 313 Cr. P.C. stabbed
Divakaran with a dagger at the place of occurrence of the incident. P.W.1, E
eye-witness to the occurrence of the incident, has stated in his evidence
that A-3 was one of the persons who was pelting stones on the house of
Divakaran before he -was made to come out of his house. It is also stated
by him that A-3 is one of he accused who chased Divakaran, when he was
rushing towards his sister Ponnamma, on hearing her cries and stopped F
him from proceeding further. His beating of Divakaran with a stick is said
to have taken place after Divakaran was stopped and stabbed by A-1. and
A-2. By appreciating the said evidence, relating to the role played by A- 3
in the company of A-1, A-2 and A-4 in bringing an end to the life of
Divakaran as given by P.W.l and the corroborating evidence, as given by
P.W.2 another eye-witness to the occurrence of the incident along with G
other evidence placed on record, both the courts below have found A-1 to
A-4 guilty of having committed the offences under section 302 and section
324 I.P.C. read with section 34 thereof, with which they were charged. On
consideration of the material on record we are not satisfied that there is
any good reason nor were we shown any, which would warrant our inter- H
    316                   SUPREME COURT REPORTS [1992] SUPP.3 S.C.R.

A   ference with the said finding of guilt of the accused recorded by both the
    courts below. Consequently sentence awarded to each of them does not
    call for our interference.

           It was then submitted by the learned counsel appearing for the
     appellant - Murali, A-4 that Divakaran had to be stabbed and beaten by
B
     the accused to save their own lives (lives of A-1 to A- 4) in exercise of their
     right of private defence. In support of this submission the learned counsel
     invited our attention to the admission of P.W.1 in his cross-examination
     that there was agricultural produce, like, plantains, ginger, rubber etc., in
     the land where the incident took place and to the statement made by A-2
C   _on his examination by the Sessions Court under section 313 Cr. P.C.
     wherein he has stated that agricultural produce, as was being stolen from
     the property where the incident occurred, a watch had been kept for the
     thieves and on the date of the occurrence of the incident at about 10 P.M.
     he along with others when had gone to sleep, they heard some sound on
D    the western side to their property and consequently he having got up and
     gone in that direction found Divakaran up-rooting ginger, having already
     kept with him two stol~n plantain bunches. As this situation resulted in
     heated exchange of words between A-2 and Divakan~n, the same is said to
     have been heard by A-1, who was a neighbour and made him com~ to the
     place, when he saw Divakaran trying to cut A-2 with a chopper in his hand.
E    A-2, it is said, felt that Divakaran will cut A-1 and A-2 with the chopper.
     and kill both of them if not prevented. He is said to have, therefore,
     stabbed Divakaran once or twice, so as to make Divakaran drop the
     chopper at the place where the ginger had been cultivated and run
     northwards. A-2, it is said, later came to know that Divakaran had died.
F    This very submission had been advanced on behalf of A- 4, as well, before
     the Sessions Court and the High Court in appeal. The Sessions Court did
     not accept the statement that the deceased Divakaran had cut t~o plantain
     bunches and kept them with him while he had uprooted some ginger in the
     land of A-2. It did not also believe about the thieving by any body of
     plantain bunches and ginger from the land of A-2 where the incident had           ?
G    occu:-red. It has been stated by the Sessions Court that if plantain bunches
     had been in fact cut and kept with Divakaran, as stated by A-2 in his
     statement, they would not have missed to be noticed by the Investigating
     Officer, who prepared the scene mahazar. The theory of private defence
     set·up by A-4, as the reason for inflicting stab injuries by A-1 and A-2 on
H    the deceased Divakaran, was, therefore, discarded by it. When the .same
          P.D. PUSHPARAJAN v. STATE [VENKATACHALA,J.]                    317

submission relatingto exercise of private defence by accused as the reason A
for inflicting dagger injuries by A-1 and A-2 on the person of Divakaran,
was made before the High Court, it has refused to accept the submission
having regard to the scant material available on record. In examining the
submission of Divakaran having gone to the place of occurrence of incident
to thieve ginger and having committed theft of plantain bunches, it is
pointed out by the High Cqurt that the evidence in the case shqws that the
                                                                           B
ginger on the land being hardly of two months' crop was not ripe for
harvest and there were no plantains in the land which had yielded bunches.
The High Court has, therefore, said that there was no question of
Divakaran going to the place of occurrence of incident to ~ommit theft. It
must have, on the other hand, it is pointed out by the High Court, that         c
Divakaran was caught by ·the accused in the land of A-2, when he was
crossing the place to reach his sister Nalini who was standing along with
her husband, P.W.1 and crying out for him. Thus, the right of private
defence said to have been exercised by the accused, A-1 to A-4, as stated
by A-2, is rejected.
                                                                                D
       We are not shown any circumstance or evidence other than those
·considered and appreciated by courts below in negativing the submission
 raised on behalf of the accused in respect of the exercise of their right of
 private defence in killing Divakaran, which could made us take a contrary
 view in the matter. The submission of the learned counsel is, therefore,       E
 untenable. There is, thus, no good ground nor are we shown any, which
 warrant our interference in the finding of guilt of A-3 and A-4 under
 section 302 I.P.C. read with section 34 thereof and the sentence awarded
 thereto by the Sessions Court and affirmed by the High Court.

       In the result, we dismiss these appeals.                                 F
     The bail granted by this Court to the appellant - Pushparajan, A- 3
and Murali, A-4 is cancelled.

G.N.                                                     Appeals dismissed.