MURALIversusSTATE OF TAMIL NADU

                                  MURALI                                          A
                                      v.
                        STATE OF TAMIL NADU

                          NOVEMBER, 14, 2000

      [UMESH C. BANERJEE AND K.G. BALAKRISHNAN, JJ.]                              B


      Practice & Procedure-Criminal Appeal-Notice of appeal restricted
to question of Sentence only-Subsequently special leave granted-Appellant
contending unfettered leave granted-Held, leave granted limited to question       C
of sentence only.

     Penal Code, 1860.

      Sections 300, 302 and 304 Part I-Exception-Right of Private
Defence-Accused present at place of deceased-Accused dragging deceased            D
and bolting door from inside-Accused coming out of room with blood
stained knife-Minor injuries on body of accused-Held, under the facts,
plea of private defence not sustainable and conviction under Section 304
Part-I upheld as no appeal preferred by prosecution.

      Appellant was tried under section 302 Indian Penal Code, 1860 but was
convicted under section 304 Part-I, IPC by the Trial Court which was upheld
in appeal by the High Cous:t Aggrieved by the Judgment of the High Court,
appellant has filed the present appeals.

      Appellant-accused contended that scope of appeals cannot be restricted
to question of sentence only as no condition was attached while granting leave;
and that injuries on the body of appellant were serious, suggesting that he
had killed deceased under his right of private defence.

      Respondent-State contended that appeal should be restricted to question
of sentence only; and that conviction was based on circumstantial evidence.

      Dismissing the appeals, the Court

      HELD: t: The Court directed issuance of notice limited to the question
of sentence only. Subsequently, by reason of the objection Court was pleased
to grant special leave in the matter. The Leave, as granted by the Court, is to
                                     615
    616                     SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A   be treated limited to the question of sentence only. (6l7-B-D]

          Harbans Singh v. State of Punjab, JT (2000) 10 SC 300, relied on.

           2.1. A perusal of the facts makes it clear that the circumstances under
    which the right of private defence is to be made applicable is not available on
B   the contextual facts. The accused was found present at the Tea Stall being
    deceased's plaee of business and as such can be termed fo be an aggressor
    and as such question of there being any right of-private defence does not arise.
    The definite evidence in the matter is that _the accused opened the door with
    a blood stained knife in which he had dragged the deceased and bolted the
    door from inside. The nature of his injuries are not, however, sufficient by
C   itself to sustain the plea of private· defence. The injuries on the accused are ·
    rather minor in nature since they were restricted to tender defusion and
    abrasion. There is no wound much less any serious injury which may even
    prompt a person to take the most heinous step of committing the murder.
                                                                          (620-C-D)
D
          2.2. Right of private defence is undoubtedly, a defence available to an
    accused. but· the Court while dealing with the defence, ought to act with proper
    circumspectii>n and caution, since the same is an exception rather than a rule.
                                                                             (620-F)

E        Dev. Narainv. TheStateofUP., [1973) 1 SCC347; WasanSinghv.State
    ofPunjab, (1996) 1SCC458; Chanan Singh v. State of Punjab, [1979) 4 SCC
    399 and Vijayan Alias Aijay Kumr v. State (represented by Inspector of Police,
    (1999] 4 sec 36, distinguished.

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 1236-
F   1237of1998.

           From the Judgment and Order dated 20.8.97 of the Madras High Court
    in Crl. A. No. 744/90 and Crl. M. P. No. 17297 of 1990.

          G. Krishnan, Radha Krishnan, Mrs, Puspha Rajan and K. B. S. Rajan for
G the Appellant.
          V. G. Pragasam for the Respondent.

          The following Judgment of the Court was delivered :

H         The accused is in appeal against the conviction and sentence imposed
                         MURALI v. STATE OF TAMIL NADU                           617

     by the High Court in affinnation of the finding of guilt under Section 304 Part-   A
     I, IPC and sentencing him to suffer rigorous imprisonment for five years.
     During the course of hearing learned Advocate appearing for the respondent-
     State, contended that the appeal should be restricted to the question of
     sentence only. The learned Advocate appearing for the appellant however,
     contended that question of treating the appeal in any restricted manner does       B
     not and cannot arise by reason of subsequent grant of leave without attaching
     any condition thereto. The records depict that on 20th March, 1998, this Court
     directed issuance of notice limited to the question of sentence only.
     Subsequently, however, after about eight months, the matter was placed in the
     list for hearing but by reason of the objection this Court was pleased to grant
     special leave in the matter. The learned Advocate appearing in support of the      C
     appeals contended that once the leave has been granted the matter is open
     for all the issues to be agitated otherwise the Court would have specified in
     the order itself while granting leave. Reliance however, has been placed on
     the decision of this Court in the case of Harbans Singh v. State of Punjab
     [Criminal Appeal No. 659 of 2000] which inter alia is an authority for the

..   proposition that t~e Leave, as granted by this Court, is to be treated limited
     to the question of sentence only-and as such the appeals were directed to
     be heard on the question of sentence only.
                                                                                        D


            The case of the prosecution as the record depicts appears that the
     deceased Vinayagam purchased 2/3rd share in the Well as well as the pump- E
     set belonging t? the Pankal (the accused). On the date of occurrence that is
     on 5th March, 1990 at about 6.15 p.m. the deceased was in his Tea shop, the
     accused went there and according to the prosecution sta~bed on the stomach
     of the deceased. When PW l Gopal intervened, the latter also suffered
     injuries. The prosecution case further goes on to record that the accused
     dragged the deceased inside the room in the business place and bolted the F
     door from inside and thereafter assaulted on the head of the deceased with
     iron pipe and stabbed him indiscriminately with a knife and caused his death.
     Though, strictly speaking, there cannot be eye-witnesses since the fatal blow
     was given admittedly inside the bolted room but prosecution examined PWs.1,2
     and 3 as eye-witnesses to the occurrence though were present outside the G
     room.

            The prosecution case however, further depicts that the door was opened
     after some time by the accused and he came out of the room with a blood-
     stained knife in his hand and the accused made his escape inspite of resistance.
     It is only thereafter that the body of the deceased was discovered in the room.    H
     618                    SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A The full factual analysis has been dealt with by the trial judge as also the High
   Court and as such we need not deal with the same in extenso, more so by
   reason of the fact that the appeals are heard on the question of sentence only.
   Significantly one aspect of the matter which stands high-lighted by~ the
   learned Advocate appearing for the respondent- State is that circumstantial
B evidence as a matter of fact clinches the issue since there is existing a
   categorical statement from PW 2 that the accused opened the door and came
 · out of the room and w'as holding Vinayagam with left hand and holding the
   knife in his right hand. It is at that juncture that PW2 Sundaram took two
   tender coconut which lay there and threw them at the accused, the accused
   however moved aside and escaped. More or less identical is the deposition
C of PW3 without any element of contradiction.
          It is on this piece of evidence that the learned State-Advocate contended
    that no exception can be taken to the finding and the sentence passed by the
    Sessions judge or the High Court.

D          As a matter of fact, the Learned Additional Sessions Judge has been
    quite lenient while dealing with the matter and has changed the conviction
    from Section 302 IPC to Section 304 Part I, IPC and recorded a punishment
    of five years rigorous imprisonment. The High Court however having come
    to the finding that there is available clinching evidence to come to the
E   conclusion that the appellant has committed the offence together with an
    observation that the Learned Judge has not properly appreciated the evidence,
    but since the prosecution has chosen not to file any appeal against the order
    of the Sessions Judge, the matter rested there.

           The learned Advocate appearing for the accused-appellant, however,
F   very strongly contended that the right of private defence ought not to be
    taken away from the appellant-accused and both the courts fell into error in
    not considering the right of defence available to an accused. It has been
    contended that the injuries on the body of the accused are all serious in

G
    nature and hence the accused was entitled to a clear acquittal. In support of
    his contention four several decisions have been cited and the first in the line
    is the decision of this Court reported in the case of Dev Narain v. The State
    of UP., [1973] l SCC 347. We need not delve in to the details of the decision
                                                                                      -
    having regard to the point in issue before the Court. The contextual facts are
    totally different and the decision does not have any manner of application
    and as such we do not feel it expedient to dilate on that score any further.
H   The second is a decision of this Court in the case of Wassan Singh v. State
                   MURALI v. STATE OF TAMIL NADU                            619

of Punjab, (1996) I SCC 458 wherein this Court in paragraph 10 of the report,      A
upon reliance on two earlier decisions Mohd. Ramzani v. State of Delhi,
(1980) Supp. SCC 215 and Deo Narain v. State of U.P., (1973) I SCC 347 has
been pleased to observe that while judging the nature of apprehension which
an accused can reasonably entertain in such circumstances requiring him to
act on the spur of the moment when he finds himself assaulted, by number
of persons, it is difficult to judge the action of the accused from the cool       B
atmosphere of the Court room. It is on this contextual sphere that this Court
held that the appellant had a right of private defence of body which extended
even to causing the death and in exercise of that right if he fired one gunshot
which unfortunately killed an innocent person, it cannot be said that he was
guilty of an offence even under Section 304 Part-I, IPC on the ground that         C
he had exceeded his right of private defence. The factual situation here is
different, as such no reliance can be placed thereon also. The third in the line
is the decision of this Court in Chanan Singh v. State of Pzmjab, (1979) 4 SCC
399 wherein this Court was pleased to observe as follows:

        "In short the High Cmm has clearly found that the prosecution has D
        not presented the true version of the occurrence and it is not possible
        for the Court to find h9W the occurrence originated and who was the
        aggressor. Admittedly( two persons on the side of the prosecution,
        namely, Guizar Singh and Gurnam Singh had suffered one grievous
        injury each, similarly five persons on the side of the accused were E
       also jnjured and two of them had grievous injuries. The High Court
       also found that it was not a case of free fight. In these circumstances,
        therefore, it is difficult to hold that the appellant fired a shot from his
        gun merely to assault Guizar Singh and not in self-defence particularly
        when the appellant himself had many injuries, one of which was
       grievous. It is true that the defence case also has not been accepted F
       by the High Court but once there is a probability of the accused
       having acted in self-defence, that is sufficient to entitle him to an
       acquittal. Mr. Singh tried his best to take us through the findings of
       the Sessions Judge in order to satisfy us that it was a case of a free
       fight and, therefore, the appellant could be convicted for individual G
       assault. The High Court, however, has given cogent reasons for
       disagreeing with the view of the Sessions Judge. Moreover, as many
       as five accused persons were acquitted on the reasonings given by
       the High Court and the State did not chose to prefer any appeal
       against the judgment in this Court. The High Court having rejected
       the fundamental details of the prosecution version and having held H
      620                     SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

 A            that the true version of the occurrence was not presented by the
              prosecution, erred in upholding the conviction of the appellant for an
              individual assault by reconstructing a new case. In these circumstances,
              we are satisfied that the prosecution has not been able to prove its
              case against the appellant beyond reasonable doubt. The appeal i.s
              accordingly allowed. The conviction and sentence passed on the
B             appellant are set aside and he is acquitted of the charges framed
              against him."

             A perusal of the facts, as appears from the decision makes it clear the
      circumstances under which the right. of private defence is to be made applicable,
C     unfortunately the same is not available on the contextual facts. The accused
      was found present at the Tea Stall being deceased's place of business and
      as such can be termed to be an aggressor and as such question of there being
      any right of private defence does not arise. The definite evidence in the matter
      is that the accused opened the door with a blood stained knife. The nature
      of his injuries are not, however, sufficient by itself to sustain the plea of
D     private defence. As a matter of fact both, learned Sessions Judge and the
      High Court have negatived such a plea and we do record our concurrence
     therewith. The injuries on the accused are rather minor in nature since they
      were restricted to tender defusion and abrasion. There is no wound, much
      less any serious injury which may even prompt a person to take the most
E     heinous step of committing the murder. Reliance was also placed on the
     decision in the case of Vijayan alias Vijayakumar v. State, (represented by
     Inspector of Police) [ 1999] 4 SCC 36 wherein this Court on the facts of the
     matter in issue and evidence on record was inclined to give judicial imprimatur ·
     to the plea of right of private defence advanced by the appellant and held
     him not guilty and granted pardon.
F
           Right of private defence undoubtedly, a defence available to an accused
     but the Court while dealing with the defence, ought to act with proper
     circumspection and caution, since the same is an exception rather than a rule.

            At the cost of repetition, we do feel it inclined to state that none of the
G decisions noticed above do not in any way render any assistance to the
     learned Advocate appearing in support of the appeals.

          On the wake of the aforesaid, we do not find any merit in these appeals.
     The appeals, therefore, fail and are dismissed.

H A.K.T.                                                          Appeals dismissed.