KRISHNANversusSTATE OF TAMIL NADU

A                                    KRISHNAN
                                          11.

                             STATE OF TAMIL NADU

                                 AUGUST 14, 2006

B                  [G.P. MATHUR AND R.V. RA VEENDRAN, JJ.)


           Evidence Act, 1872-Section 105-Penal Code, 1860-Sections 96,
    302, 304 Part II & 323-Criminal Procedure Code, 1974-Section 313-
C   Accused charged with murder for hitting deceased on his head with a thorn
    stick in a quarrel-Plea of self-defence taken by the accused-Trial Court
    rejected the plea and convicted the accused for murder and sentenced him
    to life imprisonment-High Court set aside the conviction and convicted him
    for the offence punishable under section 304 Part fl /PC and sentenced him       ....
    to undergo RI for 5 years-·Correctness of-Held, on fac1s, evidence of PW
D   2 and plausible explanation by the accused in his stateme'lt under section
    313 Cr.P.C supports the plea of self-defence pulforth lhe uccused---Hence,
    accused is acquitted.

          The case of the prosecution was appellant and deceased elder brother
    were residing with their families in two adjoining portions with a common
E   open yard in front of their houses. PW 5, who is the wife of the deceased,
    covered the sewage drain in the common yard with thorn sticks. Appellant
    removed the thorn sticks as they came in the way of tethering his bullocks.
    PW 1, who is the son of the deceasetl, put back the thorn sticks in place but
    the appellant removed them again. The deceased replaced them. This resulted
F   in a quarrel between the two families and the appellant took one of the thorn
    sticks and hit the deceased on his head. When the appellant tried to hit the
    deceased for the second time, PW I intervened and received the blow causing
    injury on his right palm. The appellant pushed the deceased who fell down
    and hit a protruding stone. The appellal!t and his two sons also hit PW I and
    ran away. The deceased succumbed to his injuries in hospital.
G
          After investigation, the prosecution framed charges against the
    appellant. The appellant took the plea of self-defence before the trial court.
    The trial court rejected the plea and convicted the appellant under section
                                                                                     -
    302 IPC and sentenced him to undergo life imprisonment. The trial court

H                                        536
                            KRISHNAN v. STATE OFTAMIL NADU                          537
•.
        also convicted both the appellant and his first son under section 323 IPC and       A
        sentenced them to 3 months rigorous imprisonment. The appellant and his
        first son filed a Criminal Appeal before High Court. The High Court set aside
        the conviction and sentence imposed on the appellant under section 302 IPC
        and instead convicted for the offence punishable under section 304 Part II
        IPC and sentenced him to undergo RI for 5 years. The conviction and sentence
        of the appellant and his first son under section 323 IPC was confirmed by the
                                                                                            B
        High Court. Hence the appeal before the Court.

              Allowing the appeal, the Court

               HELD: 1.1. A perusal of cross-examination of PW 1, PW 2, PW 4 and
        PW 5 and the statement under section 313 Cr.P.C. clearly shows that the
                                                                                            c
        appellant had put forth a plea of self-defence. The onus is on the accused to
        establish that his action was in exercise of the right of private defence. The
        plea can be established either by letting in defence evidence or from the
        prosecution evidence itself, but cannot be based on speculation or mere
        surmises. The accused need not take the plea explicitly. He can succeed in          D
        his plea ifhe is able to bring out from the evidence of the prosecution witnesses
        or other evidence that the apparent criminal act was committed by him in
        exercise of his right of private defence. He should make out circumstances
        that would have reasonably caused an apprehension in his mind that he would
        suffer death or grievous hurt if he does not exercise his right of private
        defence. There is a clear distinction between the nature of burden that is cast     E
        on an accused under section 105 of the Evidence Act, 1872 (read with sections
        96 to 106 IPC) to establish a plea of private defence and the burden that is
        cast on the prosecution under section 101 of the Evidence Act to prove its
        case. The burden on the accused is not as onerous as that which lies on the
        prosecution. While the prosecution is required to prove its case beyond             F
        reasonable doubt, the accused can discharge his onus by establishing a
        preponderence of probability. [543-A-B-H; 544-A-B-C)

             Partap v. State ofU.P.. [197611SCC757; Salim Zia v. State of UP,
        1197912 SCC 648; Mohinder Pal Jolly v. State of Punjab, [1979) 3 SCC 30;
        Sekar v. State, [200218SCC354 and Rizan v. State of Chattisgarh, [2003) 2           G
        sec, referred to.
-~
              1.2. The trial Court considered the plea of self-defence but rejected it
        on the ground that appellant did not state in his statement under Sec. 313
_,..,   that he had hit the deceased in self defence. Obviously an accused cannot be        H
    538                         SUPREME COURT REPORTS 120061 SUPP. 4 S.C.R.

A expected to admit that he had inflicted the below that killed the deceased.
    Where the plea of the accused, when read with the evidence of the eye
    witnesses, brings out a set of facts and circumstances showing that the accused
    acted in exercise of the right of private defence, the fact that the accused in
    his Section 3 t3 Cr. P.C. statement only referred to the acts of the deceased
B   and his son hitting him and did not admit that he hit back the deceased, is not
    a ground to reject the plea of private defence.1548-E-F-Gj

          1.3. PW 2 clearly admitted that when the deceased and the appellant
    were quarrelling and pulling each other, the deceased bit the appellant in his
    right hand between the thumb and the index finger and that both the deceased
C   and his son PW 1 attacked the appellant with sticks and to protect his head,
    the appellant raised his hands and got injured in the elbow. It becomes obvious
    that apprehending grievous hurt, he took the thorn stick lying nearby and
    hit the deceased to protect himself. The appellant w2s neither armed with any
    weapon when he came to the spot nor bring any thing from his house after
    the quarrel started. He just picked up the thorn stick which was lying at the
D   spot. This clearly probabilises a case of self-defence. The evidence of PW 2
    clearly and completely wrroborates and supports the case of self-defence put
    forth by the appellant. The manner in which he has given evidence in
    examination-in-chief and in the cross-examination shows that he was not a
    partisan witness and was giving evidence in a natural manner.
E                                                          1548-A-B-C; 546-C-D-El

          1.4. The deceased, P. Ws. 1 and 5 were bent upon preventing the appellant
    from tethering his cattle in the common yard. In view of the admitted discord
    and disputes between the family of tbe deceased and the appellant, and being
    active participants in the dispute which led to the incident, it is but natural
F   that PW 1 and PW 5 will highlight only !he acts of the appellant and not the
    acts of the de<:eased and PW-1. [547-E-FI

           1.5. The evidence of the two independent eye-witnesses P. Ws. 2 and 4
    clearly show that there was no stagnant water in the drain and therefore, there
    was no need to place any thorn sticks :iver that area. Therefore, the case of
G   the prosecution that the pigs were coming and causing nuisance in the
    stagnant water in the drain and therefore, thorn sticks were placed by the
    family of the deceased to cover the drain, is proved to be false. It became clear
    that the deceased and his wife and son were putting thorny sticks to prevent
    the appellant from tethering his cattle and they started the discord.
                                                                                        -
H                                                                1547-D-E; 548-D-El
             KRISHNAN v. STA TE OF TAMIL NADU [RAVEENDRAN. J.)                 539
         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 631 of                 A
 2000.

       From the Judgment and Order dated 10.2.2000 of the High Court of
 Judicature at Madras in Criminal Appeal No. 571 of 1989.

         M.S. Ganesh, K. Seshachary and R. Ayyam Perumal for the Appellant.           B
         V.G. Pragasam for Respondent.

         The Judgment. of the Court was delivered by

        RA VEENDRAN, J. This appeal by special leave is directed against the          C
 judgment and order dated 10.2.2000 of the Madras High Court in Criminal
 Appeal No.571/1989. The appellant and his son Samivel were accused l and
 2 in Sessions Case No.139/1987 on the file of the Sessions Judge, South Arco!
 district. The appellant was tried for the offence of murdering his elder brother
 Rathina Gounder. The appellant and his son Samivel were also charged with
 the offence of causing hurt to Elumalai (son of the deceased). The trial court       D
 vide judgment dated 27.4.1989 convicted the appellant under section 302 !PC,
 and sentenced him to undergo life imprisonment. The trial court also convicted
 both the appellant and his son Samivel under section 323 !PC and sentenced
 them to 3 months' rigorous imprisonment. In a separate proceeding, in
 SC.No.140/1987, Sekar, the juvenile son of the appellant, was also found guilty      E
 for causing hurt to Elumalai and was ordered to be detained in a juvenile home
 for six months.

         2. Feeling aggrieved, the appellant and his first son Samivel filed Crl.A.
  No.571/1989 and Sekar filed a separate appeal in Crl.A. No.629/1989. Both
  appeals were disposed of by the High Court by a common judgment dated               F
  10.2.2000. Criminal Appeal No.571/1989 was allowed in part. The conviction
  and sentence imposed on the appellant under section 302 was set aside and
  instead, he was convicted for the offence punishable under section 304, Part
  II, IPC, and sentenced to undergo RI for 5 years. The conviction and sentence
  of the appellant and his son Samivel under section 323 was not disturbed.
  Criminal A.No.629/1989 filed by the appellant's juvenile son Sekar was allowed      G
  and he was acquitted: Aggrieved by his conviction under section 304, Part
· 11, the appellant has filed this appeal, contending that he ought to have been
  acquitted by accepting his plea of sclf.-defence.

         3. The prosecution case, in brief, was as follows :
                                                                                      H
    540                          SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A        (3.1) The appellant and his elder brother Rathina Gounder were residing
  with their respective families in two adjoining portions, with a common open
  yard in front of their houses. The appellant used to tether his bullocks in the
  common yard. There was also an open sewage drain in the common yard. To
  prevent pigs coming to the drain and causing nuisance, Rathina Gounder's
  wife Kasiammal covered the said drain with thorn sticks on or about 5th or
B 6th of June, 1997. The appellant removed the thorn sticks as they came in the
  way of tethering his bullocks. There was a simmering discord for about 3 days
  about the thorn fencing of the drain between the families of the two brothers,
  that is, Rat~ina Gounder, his wife Kasiammal and his son Elumalai on the one
  hand, and appellant (Krishnan) and his two sons Samivel and Sekar on the
C other.
           (3.2.) On 9.6. 1987 at about 5 p.m., the appellant removed the thorn sticks
    which had been placed by Kasiammal. Elumalai (PW-I) put back the thorn
    sticks in place. At about 8 p.m., the appellant again removed the thorn sticks
    and tethered his bullocks. Rathina Gounder who saw the thorn sticks being
D removed, came and replaced the tliorn sticks over the drain. The appellant
    again removed th(:m. The action of Rathina Gounder placing the thorn sticks
    over the drain and the appellant removing them, went on for a while and a
    quarrel developed. The appellant told Rathina Gounder "You are always doing
    like this. I will see." and took one of the thorn sticks lying on the ground and
E hit Rathina Gounder on his head. When the appellant tried to hit Rathina
   Gounder with the thorn stick for a second time, his son Elumalai tried to
    intervene and received the blow causing injury to his right palm. Thereafter
   the appellant pushed Rathina Gounder who fell down and a protruding stone
    pierced near the arm-pit. The appellant again hit Elumalai on his forehead with
  ·the thorn stick. His two sons Samivel and Sekar also hit Elumalai. Thereafter,
F appellant and his two sons ran away. Elumalai collected the thorn stick
   dropped by the appellant and kept it. By then it was abo.ut I0 P.M.

          (3.3.) Rathina Gounder was taken to Thirukovilur Government Hospital.
    Dr. Bhaskaran (PW-3) examined him and referred him for further treatment to
    Cuddalore Government Hospital. However, Kasiammal and others took Rathina
G   Gounder to Jipmer Hospital, Pondicherry where Rathina Gounder succumbed
    to his injuries on 12.6.1987 at about 12.45 p.m.

          (3.4.) Elumalai also got himself examined at Thirukovilur Government
    Hospital. When he was in the said hospital, on I0.6.1997 at about 6.00 A.M.,
    the Sub-Inspector of Police attached to Arakandanathur Police Station came
H
          KRISHNAN v. STATE OFT AMIL NADU [RA VEEN ORAN, J.)                 541
and enquired about the incident and recorded his complaint.                         A
      4. The prosecution examined 13 witnesses. Elumalai (PW- I), Thangaraj
(PW-2), Pitchaimuthu (PW-4) and Kasiammal (PW-5) were the eye-witnesses.
Elumalai, son of the deceased was an injured eye-witness. Kasiammal was the
widow of the deceased, Thangaraj was the nephew of both Rathina Gounder
and the appellant, Thangaraj and Pitchaimuthu were neighbours. All the four B
eye-witnesses narrated tlie incident broadly in accordance with the prosecution
case. They also stated that as there was a street-light nearby they could see
what happened clearly. M. Subramaniam Pillai (PW-9) was the Panchayat
President who had switched on the street light opposite Rathina Gounder's
house, which had lit up the area when the incident took place.                  C
        Dr. Bhaskaran (PW-3) had examined the dece\lsed and his son Elumalai
for their injuries at Thirukovilur Government Hospital and issued the injury
certificates (Ex. P-2 & P-3). Atul Murari (PW-6), Associate Professor of Forensic
Medicine, Jipmer Hospital, Pondichery, conducted the post-mortem on the
body of the deceased. Both doctors opined tha! death occurred on account            D
of the head injury (lacerated wound of scalp 3cm X Icm X bone deep over
the vault. PW-6 stated that the corresponding internal injury was separation
of coronal suture extending literally on the right side of temporal region, total
length of the fracture being 13 cm, extra-dual haematoma in _the right temporal
region and generalized subsural and subarachnoid haemorrhage. PW-6 has
opined that the head injury with corresponding internal injuries were sufficient    E
in the ordinary course of nature to cause death.

       Sheikh Kani (PW-12) was the Sub-Inspector of Police at Arakandanallur
Police Station who recorded the statement of Elumalai and registered Crime
No. 196 of 1987 and prepared the FIR, sketch of the place of occurrence F
(Ex.P16) and drew the Mahazar (Ex. P-13). He also seized the thorn stick of
three feet kngth used by the appellant (MO No. I) and collected blood stained
soil from the spot (MO. No.3). He also recorded the statement of Kasiammal
and other witnesses. He stated that he arrested the appellant on 11.6.1986 at
6 A.M. G. Jagadeesan (PW-13) was the Investigating Officer, who took over
the investigation on 13.6.1987 at 2.00 P.M. PW-7 to 11 were formal witnesses. G

       5. The trial court found that the evidence of the four eye-witnesses
(PWs.1, 2, 4 and 5) clearly established that the appellant hit Rathina Gounder
on the head with the thorn stick during.his quarrel .with Rathina Gounder. The
trial court rejected the case of self-defence put forth by the appellant for the
following reasons :                                                              H
    542                        SUPREME COURT REPORTS [2006J SUPP. 4 S.C.R.

A          (a)   There was no evidence to show that the appellant was injured
                 during the incident.
           (b) The appellant did not state in his statement under section 313
               IPC that he hit Rathina Gounder in self-defence, to avoid danger
               to his life.
B          (c)   The appellant did not establish that he gave a complaint to
                 Arakandanallur Pulice Station in regard to the attack by Rathina
                 Gounder and Elumalai, as no such complaint was recorded in the
                 said Police Station.

    The trial court further held that the appellant had acted with the intention of
C causing bodily injury to Rathina Gounder and such bodily injury inflicted by
  him being sufficient in the ordinary course of nature to cause death, he was
  guilty of culpabl~ homicide amounting IQ murder under section 300 (Thirdly)
  of IPC. Consequently, the appellant was convicted under section 302 IPC. Tr.e
  trial court also held that the evidence of the four eye witnesses clearly
D established that the appellant and his two sons had hit Elumalai (PW- I) and
  consequently, convicted them under section 323 IPC.

           6. The High Court affirmed the finding that Rathina Gounder died as a
    result of the head injury caused by the Appellant, by hitting him on the head
    with the thorn stick. It also held that the evidence of PWs.-1, 2, 4 and 5, that
E   the appellant suddenly picked up the thorn stick lying nearby during a quarrel
    and hit the deceased as also the fact that the appellant did not come to the
    place of occurrence with any weapon, established that there was no pre-
    determined or pre-meditated plan or intention on the part of the appellant to
    cause the death of the deceased or cause any bodily injury as is likely to
F   cause death; and that the appellant had hit the deceased with the knowledge
    that his act of hitting the deceased on his head was likely to cause death.
    The High Court was of the view that the thorn stick used (of about three feet
    length) was not a dangerous weapon. Consequently, it held that the appellant
    had to be convicted under section 304 Part II, IPC and not section 302 IPC
    and sentenced him to five years rigorous imprisonment. It did not disturb the
G   conviction and sentence under section 323 IPC.

        7. The said decision of the High Court is under challenge in this appeal.
  The learned counsel for the appellant submitted that the High Court did not
  consider the plea of self-defence though specifically raised. We find that the
  entire Memorandum of Appeal before the High Court concentrated and
H revolved upon the plea of self-defence. The grounds referred to the evidence
            KRISHNAN v. STATE OF TAMIL NADU [RA VEENDRAN, .I.]             543

 of PW 2 Thangaraj and the several circumstances, which the appellant relied A
 on to make out a case of self-defence. The High Court ought to have considered
 the said plea which goes to the root of the matter.

        8. A perusal of the cross-examination of PW-I, PW-2, PW-4 and PW-
  5 and the statement under section 313 clearly shows that the appellant had
  put forth the following pleas of self-defence : That Rathina Gounder and his B
  wife and son were jealous of the appellant as he was maintaining bullocks and
  cultivating the land; that therefore, they were trying to obstruct the tethering
  of his bullocks in the common yard by putting thorn sticks in that place; that
  there was no drain/gutter in the common yard and therefore, the question of
  covering any drain by thorn sticks did not arise; that the thorns were pricking C
  his bullocks and making it difficult for him to tether his cattle; that whenever
  he removed the thorns and tetherP.d his cattle, Rathina Gounder and his son
, Elumalai were threatening that they will assault him and kill him; that on the
  date of incident, Rathina Gounder and his family had thrown thorny sticks
  next to the bullocks tethered by the appellant, the said thorns were pricking
  the cattle and made it difficult for the cattle to lie down; that, therefore, he D
  went and removed the thorn; sticks; that at that time, Elumalai (PW-I) came
  and held his neck and Rathina Gounder came and held his hair-locks; that
  when he tried to release himself, Rathina Gounder bit him next to the right
  thumb and blood started oozing out; that Rathina Gounder and Elumalai also
  took a stick each and slashed towards his head; that he raised his hands to E
  cover his head, and that the blows fell on both his elbows resulting in
  lacerated wounds. The appellant also stated that fearing for his life, he ran
  away and went to the Arakandanallur Police Station around 12 O'clock mid
  night and explained what happened and showed his wounds. The Sub-
  Inspector asked him to give a ·complaint and he got a complaint written and
  gave it. The Sub-Inspector took it and stated that he has to go out; that he F
  came back around 2 A.M. in the morning; that within a short time, Rathina
  Gounder, Elumalai, Kasiammal and some others came to the Police Station and
  the Sub-Inspector took some signatures from Elumalai, and thereafter they
  went back; that the Sub-Inspector detained him in the police station for two
  days and arranged for treatment for the hand wounds through a Homeopathy G
  Doctor; and that only on Thursday, he sent him to court. He also stated that
  he did not hit Rathina Gounder or Elumalai.

      9. It is now well settled that the onus is on the accused to establish that
his action was in exerCise of the right of private defence. The plea can be
established either by letting in defence evidence or from the prosecution H
    544                        SUPREME COURT REPORTS [20061SUPP.4 S.C.R.

A evid.:nce itself. but cannot be based on speculation or mere surmises. The
    accused need not take the plea explicitly. He can succeed in his plea if he is
    able to bring out from the evidence of the prosecution witnesses or other
    evidence that the apparent criminal act was committed by him in exercise of
    his right of private defence. He should make out circumstances that would
    have reasonably caused an apprehension in his mind that he would suffer
B   death or grievous hurt if he does not exercise his right of private defence.
    There is a clear distinction between the nature of burden that is cast on an
    accused under section I05 of the Evidence Act (read with section 96 to I06
    of Indian Penal Code) to establish a plea of private defence and the burden
    that is cast on the prosecution under section I0 I of the Evidence Act to
C   prove its case. The burden on the accused is not as onerous as that which
    lies on the prosecution. While the prosecution is required to prove its case
    beyond a reasonable doubt, the accused can discharge his onus by establishing
    a preponderance of probability- (vide Partap V. State of U.P., (1976] I sec
    757; Salim Zia v. Stute of UP. [1979] 2 SCC 648 and Mohinder Pal Jolly v.           ".·
    State of Punjab. [1979] 3 SCC 30).
D
          In Sekar v. State, [2002] 8 SCC 354, this Court observed :

           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
E          chance to inflict severe and mortal injury on the aggressor .... ln 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
F          factors to be considered. 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 the 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
G          accused to plead in so many words that he acted in self-defence. If
           the circi.mstances 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 is available to be considered from the
H
          KRISHNAN v. STA TE OF TAMIL NADU [RA VEENDRAN, J.]               545
        material on record.                                                       A
                                                         (emphasis supplied).

      The above legal position was reiterated in Rizan v. State ofChhattisgarh,
[2003] 2 SCC 661. After an exhaustive reference to several decisions of this
Court, this Court summarized the nature of plea of private defence required       B
to be put forth and the degree of proof in support of it, thus :

        "Under Section 105 of the Indian Evidence Act, 1872, the burden of
        proof is on the accused, who sets off 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 C
        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 ofprivate defence is not required
        to call evidence; he can establish his plea by reference to               D
        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. When 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        E
        warding off the 1ttack 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 in favour of
        that plea on the basis of the material on record .... The accused need    F
       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."

                                                          [Emphasis supplied]

       10. We will examine the evidence, keeping in view, the said principles.    G
Thangaraj (PW-2) is a neighbour and nephew of both the deceased and the
appellant. In his examination-in-chief, he gave details of the quarrel and
altercation between Rathina Gounder and the appellant in regard to removal
of the thorny sticks covering the drain, and stated that during the quarrel,
Krishnan took a thorn stick that was lying nearby and hit Rathina Gounder         H
    546                         SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A on his head; that when the appellant tried to hit Rathina Gounder the second
    time, Elumalai tried to prevent it and sustained injury to his right hand; and
    that the appellant thereafter pushed Rathina Gounder who fell down. In the
    cross-examination, he stated that as it was summer, water was not stagnating
    in the drain situated in the common yard and there was no nuisance by pigs;
B   that because of the thorn sticks, the cattle had no place to rest; that when
    Rathina Gounder and the appellant were pushing each other during the
    quarrel regarding thorn sticks, Rathina Gounder bit appellant's hand between
    the right thumb and index finger; that when Rathina Gounder and Elumalai
    attempted to hit the appellant with a thorn stick, the appellant tried to prevent
    it by covering his head with his hands and the blows landed on both his
C   elbows resulting in wounds. He has also stated that he had accompanied
    Rathina Gounder and others to Arakandanallur Police Station at 2 A.M. that
    then he saw the appellant sitting in the police station and at that time also
    he saw the injuries on the hands of the appellant.

          The above evidence clearly and completely corroborates and supports
D   the case of self-defence put forth by the appellant. What is significant is that
    the PW-2 was not subjected to any re-examination on this aspect nor was he
    sought to be declared hostile. In fact, the manner in which he has given
    evidence in examination-in-chief and in the cross-examination shows that he
    was not a partisan witness and was giving evidence in a natural manner. The
E   said evidence of Thangaraj (PW-2), which fully supports the case of self-
    defence put forth by the appellant, has not been considered by the trial court
    and completely ignored by the High Court.

         11. We may also refer to the evidence of the other eye-witnesses in this
  behalf. Elumalai (PW- I) has of course denied the suggestions that the deceased
F bit the right hand of the appellant, and that he and the deceased had hit the
  appellant and the blows had landed on Appellant's elbows when he raised
  his hands to cover his head. When he was asked whether he noticed the
  blood on the hands of appellant, he stated that he did not "notice" it. He
  admitted the differences and quarrels between his family and the appellant in
  regard to tethering of cattle by the appellant and keeping thorny sticks in the
G common yard. Pitchaimuthu (PW-4) in his cross-examination has stated that
  he did not notice whether Rathina Gounder and the appellant were pushing
  each other but he noticed Rathina Gounder repeatedly putting the thorn
  sticks and the Appellant repeatedly removing them; that there was no stagnant
  water in the drain, over which the thorn sticks were being placed; and that
H both Rathina Gounder and the appellant, quarrelling and pushing each other
           KRISHNAN v. STATE OF TAMIL NADU [RAVEENDRAN, J.]                   547
came from the drain area to the road. He states that he did not see the               A
deceased and Elumalai hitting the appellant and that he did not know whether
the appellant received injuries to his hands and whether the blood was oozing
from the wounds. It is evi~ent that PW-4 was not a witness to the entire
incident and that he saw only a part of it. Kasiammal (PW-5), in her cross-
examination admitted that there were altercations on account of tethering of          B
cattle and removing of thorny sticks; that between 8 & 9 P.M. on the day of
the incident, both Rathina Gounder and the appellant were respectively putting
and removing the thorn sticks repeatedly, and that when the appellant hit her
husband with the thorn stick, her husband did not fall down. She, of course,
denied that Rathina Gounder bit the appellant in his hand and also denied that
Rathina Gounder and Elumalai hit the appellant with sticks.                           C
       12. Out of the four eye-witnesses, two (PWs.1 and 5) are the son and
widow of the deceased. The evidence of these two witnesses establishes that
there was enmity and an ongoing dispute in regard to the use of the common
yard; That on the day of the incident, the entire quarrel arose because PW-
5 initillly placed the thorn sticks over the area where the appellant was             D
tethering his cattle, and the deceased and PW 1 prevented the appellant when
he tried to remove them; and that as a consequence there was an altercation
between the deceased and the appellant when the deceased repeatedly placed
the thorny sticks and the appellant repeatedly removed them. In fact the
evidence of the two independent eye-witnesses - PW-2 and PW 4, clearly                E
show that there was no stagnant water in the drain and therefore, there was
no need to place any thorn sticks over that area. !t is clear that the deceased,
PW-I and PW-5 were bent upon preventing the appellant from tethering his
cattle in the common yard. In view of the admitted discord and disputes
between the family of the deceased and the appellant, and being acting
participants in the dispute which led to the incident, it is but natural that these   F
two witnesses will highlight only the acts of the appellant and not the acts
of the deceased and PW- I.

       13. In rega'rd to the evidence of PW-4, Pitchaimuthu, we find that he saw
the incident from a distance. He came out of his house only after the altercation/
quarrel had gone on for some time and, therefore, had seen only a part of the G ·
incident. He admits that the altercation centred around the appellant asking
why the thorn sticks were put at the place where he was tethering his cattle,
and the deceased asking why appellant was removing the thorny sticks. He
also admits that when he first saw the incident, both were holding the thorny
sticks and pulling each other. He also admits that the deceased was repeatedly H
    548                         SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.

A placing the thorny sticks and the appellant was repeatedly removing them. He
  also admits that both the deceased and the appellant quarreling and pushing
  each other, came from the drain area to the road. Therefore, the evidence of
  PW-2 Thangaraj becomes crucial. He had seen the incident from the beginning
  and has narrated what had happened. He has clearly admitted that when the
B deceased and the appellant were quarreling and pulling each other, Rathina
  Gounder bit the appellant in his hand between the right hand thumb and the
  index finger, and that both the deceased and his son Elumalai attacked the
  appellant with sticks and to protect his head, the appellant raised his hands
  and got injured in the elbow. It becomes obvious that apprehending grievous
  hurt, he took the thorn stick lying near by and hit the deceased to protect
C himself. The appellant was neither armed with any weapon when he came to
  the spot nor bring any thing from his house after the quarrel started. He just
  picked up the thorn stick which was lying at the spot. This clearly probabilises
  a case of self-defence.

          14. Another significant aspect to be noticed is that both Thangaraj
D (PW-2) and Pitchaimuthu (PW-4) admit that there was no stagnant water in
    the drain situated in the common yard. We have referred to this fact earlier
    also. Therefore, the case of the prosecution that the pigs were coming and
    causing nuisance in the stagnant water in the drain and therefore, thorn sticks
    were placed by the family of the deceased to cover the drain, is proved to
E   be false. It became clear that the deceased and his wife and son were putting
    thorny sticks to prevent the appellant from tethering his cattle and they
    started the discord.

         15. The trial court considered the plea of self-defence but rejected it on
  the ground that the appellant did not state in his statement under section 313
p Cr.P.C. that he had hit Rathina Gounder in self-defence. Obviously, an accused
  cannot be expected to admit that he had inflicted the blow that killed the
  deceased. Where the plea of the accused, when read with the evidence of the
  eye witnesses, brings out a set of facts and circumstances showing that the
  accused acted in exercise of the right of private defence, the fact that the
  accused in his 313 statement only referred to the acts of the deceased and
G his son hitting him and did not admit that he hit back the d~ceased, is not
  a ground to reject the plea of private defence. The approach of the trial court
  to the plea of private defence was erroneous. The High Court did not go into
  this aspect at all.

          16. It is true that the appellant has not examined the Doctor who treated
H
          KRISHNAN v. STATE OFT AMIL NADU [RAVEENDRAN, J.]                 549

his injuries on his elbows. There is also no FIR in regard to appellant's          A
version of the incident. There is nothing to show that the Jail Doctor recorded
the injuries. These factors would nonnally militate against acceptance of a
plea of self defence. But the clean and uncontroverted evidence of PW-2 and
the plausible explanation by the accused in his statement under Section 313
tilt the balance. The court must be objective and examine the matter on the        B
facts and circumstances of each case to find out whether the situation was
such as was likely to reasonably cause apprehension in the mind of the
accused that death or grievous hurt would be caused to him if he did not act
in self-defence. Hs action in hitting the deceased on his head by taking a stick
lying on the ground, was a reflex action to save himself from the attack by
the deceased and his son. The appellant had not gone to the spot with any          C
weapon. There was a lengthy quarrel and scuffle between the deceased and
the appellant. The deceased and his wife and son were the root-cause for the
quarrel as they put thorny sticks at the place where appellant was tethering
his cattle. The evidence probabilises the defence version that the deceased
and his son had hit the appellant with sticks on his head and the blows
landed on his elbows when he raised his hands to protect his head, and that        D
at that stage, the appellant picked up one of the thorny sticks which were
lying at the spot and hit the deceased, to protect himself and not with the
intention of killing him. The deceased died two days later on account of the
resultant injury. The accused has also stated that he was detained in the
police station dn the night of 9th , but was shown to have been arrested only      E
on I Ith. It is not necessary to go into this aspect, as the preponderance of
probabilities show that the act of the appellant was in all probability, in
exercise of his ,right of private defence.
               I

       17. For the foregoing reasons, we allow this appeal, set aside the
conviction under sections 302 and 323 and acquit the appellant of the charges.     F
His bail-bonds shall stand discharged.

B.S.                                                          Appeal allowed.


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