Holding

The plea of private defence was upheld, and the appellant was acquitted of murder.

Summary

The case arose from a long‑standing rivalry between two neighbouring families over stone slabs that blocked drainage. On 5 October 1984, after a morning altercation in which the appellant's faction slapped the deceased's father, the deceased Natarajan and his brother either pursued the appellant (prosecution version) or, as the appellant claimed, trespassed into his house and attacked him (defence version). The prosecution alleged that the appellant stabbed Natarajan, while the defence argued that the appellant acted in private defence after being assaulted, citing the appellant's injuries, a doctor's statement, and photographs of blood stains. The trial court and High Court rejected the private‑defence plea, convicting the appellant of murder, but the Supreme Court found the defence version more probable, noting the investigating officer’s failure to examine the house and the implausibility of the prosecution’s explanation of the appellant’s injuries. The Court also held that evidence contradicting a witness’s presence (under Evidence Act s.153) was admissible. Consequently, the Supreme Court acquitted the appellant, holding that the plea of private defence was valid.

Issues considered

The applicability of the right of private defence under IPC s.96 to the appellant's actions.
Whether the appellant exceeded the scope of private defence, constituting murder under IPC s.300.
The admissibility of evidence contradicting a witness’s presence under Evidence Act s.153.
The credibility of the prosecution’s explanation of the appellant’s injuries.

Legislation cited

Indian Evidence Act, 1872s. 153
Indian Penal Code, 1860s. 300, s. 96

Subjects

private defencemurderself‑defenceIndian Penal CodeEvidence Actwitness credibilityinvestigation failurecriminal appeal

Judgment

VIJAYAN @ VIJA YA KUMAR A
v.
STATE REP. BY INSPECTOR OF POLICE

MARCH 22, 1999

[K.T. THOMAS AND D.P. MOHAPATRA JJ.] B

Penal Code, 1860-Sections 300 and 96-Privaie defence-Plea of--
Determination of aggressor-Divergent versions of prosecution and defence
side about incident-Injuries sustained by accused not satisfactorily
explained-No reference in the First Information Report about injuries C
sustained-Defence version that deceased and his party trespassed into the
accused's house and attacked in retaliation of earlier attack came on official
record soon after occurrence of the incident when accused told the doctor
who examined his injuries-Evidence of photographer that he saw blood
stains in front portion of accused's house and portico-Non-examiriation of D
place of occurrence by the Investigating Officer even after coming to know
of such version of the accused-Thus, on facts, defence version appears to be
more probable-Hence, plea of private defence accepted.

- Evidence Act, 1872-Section 153-Exclusion of evidence to contradict
answers to question testing veracity-Accused can lead evidence to show
that eyewitness was at different place at the time of the occurrence-
Evidence of such type is not aimed at shaking the credit of the witness by
E

injuring his character-It affects only the veracity of the testimony-Thus,
on facts, held that the eyewitness recorded as being present in the inquest

-- report is of no consequence.

Out of the six persons arraigned before the Sessions Court for
murder of one 'N' the appellant was convicted and rest all were acquitted.
F

The trial court denounced the plea of right of private defence of the appellant
The appellant approached High Court. The High Court rejected the plea of
right of Private Defence and confirmed the conviction and sentence of G
imprisonment for life. Hence, this appeal.

Allowing the appeal, this Court

HELD 1.1. The judicial imprimatur is given to the plea of right of
private defence advanced by the appellant and hold him not guilty of the H
89
90 SUPREME COURT REPORTS [1999] 2 S.C.R.

A offence of murder. [98-A]

1.2. The contention of the respondent that the appellant had exceeded
his right of private defence is rejected as it is not possible to precisely
measure the frontier up to which the right of private defence could have been
B stretched. [97-G-H]

1.3. The defence version that deceased and his party trespassed into
the accused's house and attacked in retaliation of earlier attack came on
- I
official record soon after occurrence of incident when the accused told the
doctor-prosecution witness who examined his injuries. The appellant would
__..
c not have had sufficient time to concoct a false story to tell the doctor so soon
after the incident. More so, when the Investigating Officer came to know of
such a version of the appellant he should have checked up the house of ...
appellant to see whether the said version of the appellant was true. But
Investigating Officer dicfnot produce any document whatsoever to convince
the Court that he did make.such examination ofthe_place of occurrence as
D mentioned by the appellant at the earliest. Though he made a bid to say that
he inspected the house while conducting a search of the same evening it
cannot be believed for a moment because no search memorandum was made,
no search-list was drawn up and no witness was collected to be present then,
Thus, on facts, the defence version seems to be more probable.
[96-G-H; 97-A-C]
E
~
1.4. The injuries sustained by the appellant were not satisfactorily
--J
explained by the prosecution. There was no reference in the FIR to the fact
that the appellant sustained any such in,iury during the incident. While
giving evidence in the Court, brother of deceased and other prosecution
F witnesses for the occurrence of the i11cident stated that appellant sustained
those injuries when second accused aimed to inflict a stab injury on the
___._
fallen deceased but it miss-struck on the crown of the head of appellant Even
assuming the second accused would have been a bad striker it is difficult to
conceive that such an aim fumbling whacking would have landed on the
crown of another man's head. [97-C-E)
G
!-
1.5. It is impossible to ignore the normal human reaction for incident.
If father of the deceased was slapped then craving for vengeance would
definitely have been on the injured party of the episode. Thus, the case of
appellant that deceased and PWl together with their bench men had
H trespassed into the house of the appellant for a retaliatory onslaught, appears
.+-
VIJAYAN @VIJAYA KUMAR v. STATE REP. BY 1.0. POLICE [THOMAS, J.) 91

- I

to be a probable s~ory, and the defence version that deceased was aggressor
is accepted. [97-E-G]
A

2.1. The rule limiting the right to call evidence to contradict a witness
on collateral issues excludes all evidence of facts which are incapable of
affording any reasonable presumption or inference as to the principal matter
in dispute. But when the issue is whether Prosecution Witness was present B
at the scene of occurrence evidence can be offered to show that at the very
time he was at a different place. Evidence of that type is not aimed at shaking
the credit of the witness by injuring his character. It affects the veracity of
the testimony irrespective of his character. On facts, the eye witness recorded
as being present in the inquest report is of no consequence. [95-C-E; F-H] C
Attorney General v. Hitchock, (1847) 1 Ex. 91, referred to.
..
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
312 of 1991.
From the Judgment and Order dated 20.3.91 of the Madras High Court D
in Crl. A. No. 314 of 1985.

N. Natarajan, V. Balasubramanium and K.K. Mani for the Appellant.
V.G. Pragasam for the Respondent.
The Judgment of the Court was delivered by E
-- THOMAS, J. Out of six persons arraigned before a Sessions Court for
the murder of one Natarajan, one alone was convicted and the rest were
acquitted. The High Court of Madras confinned the conviction and sentence
(imprisonment for life). His plea of right of private defence was denounced F
by the trial court as well as the High Court. The said sole convict, Vijayan,
is the appellant before U3.

The 5th of October, 1984 was an eventful day for the rival factions one
of which the appellant belongs to. A series of events took place on that day
which ended up with the death of Natarajan at about 2.30 pm. It gave rise to G
the present case.

Prosecution and the defence were in substantial agreement regarding
the narrative of the events till the penultimate stage. But they differed grossly
with each other regarding the final stage in which fatal injury was inflicted
on the deceased to which he succumbed in a few minutes. H
92 SUPREME COURT REPORTS (1999] 2 S.C.R.

A The following part of the story is, by and large, undisputed. Natarajan
and his brother PWl - Kandaswamy were residents of a place called
-
J
Edayankattuvalasu in Erode town (Tamil Nadu). Their neighbour was Periyanna.
He and his children were residing in adjacent houses. Appellant Vijayan is
one of the sons of Pariyanna. All the houses of the above persons were on
B · the southern side of a road (Nasianur road) at Eroge town.. · '

· PWl- Kandaswamy and deceased Natarajan laid stone slabs over a
drainage which passed through a private passage leading to the houses of
all the above persons.· Those stone slabs caused stagnation of water during
rainy season and it affected Periyanna's building. So his sons requested the
C other party to remove the stone slabs. But hone of such requests was heeded
to.

On-the morning of 5.10.1984 appellant-Vijayan and his brothers forcibly
\
removed those stone slabs. On coming to know of it PWI-Kandaswamy along
D with his brother Natarajan and father Kuppuswamy went to the house of
Periyanna and questioned their act. It led to an altercation during which 'one
belonging to the appellant's faction slapped twice on the cheek of Kuppuswamy
the fathel/of PWI and deceased. As some neighbours intervened then PWl-
Kandaswamy and deceased went back to their house with Kuppuswamy. All
E those incidents happened before noon hours.
The above events are not in dispute, but as to what happened thereafter
we have before us two diametrically divergent versions. According to the
prosecution, the following incident~ happened thereafter :

F At about 2.30 pm the deceased Natarajan was walking along Nasianur
road towards east. He was fpllowed by PWl Kandaswamy, who was followed
by his- father-in-law PW2-:Chenniappan. As the deceased passed the house
-
of Periyanna six assailants emerged out of that house armed with knives,
spear and siCkles etc. Sensing danger at the sight of the on rushing assailants
G Natarajan made a right-about-tum and scampered towards. west but ,the
assailants chased him a11~ intercepted him and pushed him down. After he
fell he was stabbed by the appellant with a knife on .the back and also on the
front chest. Appellant's brother Thflak~n (s.econd accu;~d i~ the case) aimed
a Qlow with a spear on Natarajan but it missed the target and fell on the crown
of appellant's bead who also fell down. Deceased Natarajan who sustained
H a stab injury on the chest died at the spot.
VIJAYAN@VIJAYA KUMAR v. STATE REP. BY 1.0. POLICE [THOMAS, J.) 93

The rival version, presented by the appellant, is the following : A
At about 2.30 pm deceased Natarajan and his brother PWl-Kandaswamy
accompanied by a gang of others went to the house of Periyanna in retaliation
for the forenoon incident. At the front portion of the house they attacked the
appellant which was resisted, but still the appellant sustained injuries. It was B
then that appellant and others acted in self-defence.

In support of the prosecution version PWl(Kandaswamy), PW2
(Chenniappan) father-in-law of PWl and PW3 (Poosappan) were examined.
They supported the case of the prosecution which they described in the same C
manner as it has been narrated above. Trial cou1t and the High Court accepted
their evidence and found the prosecution story to be true.

Post-mortem certificate issued by PW6 (Dr. S. Velmurugan) showed that
the deceased had two injuries, one Of which was a stab wound on the left
chest which pierced the upper lobe of left lung and the left pulmonary artery D
was completely cut. The other injury was a stab wound on the left chest, but
its depth was only 1 cm. The doctor has rightly opined that the first injury
was necessarily fatal and the injured could not have survived for more than
a couple of minutes thereafter.
E
PW6 - Dr. S. Velmurugan, a Civil Assistant Surgeon of Government
Hospital, Erode, had deposed that appellant Vijayan met him at 3 pm on
5.10.1984 with a lacerated injury (2xY:zxY:z") over the mid parietal region of the
scalp, and some abrasions over the right knee, right index finger and on the
dorsum of the foot.
F
The detailsofthose injuries were written in Ex.PS-Accident Register.
But the more important aspect of the evidence of PW6-doctor is this: Appellant
told him then that he received those injuries at 2.45 pm "at his own residence
when three assailants assaulted him with pitchuva and a screw driver."
G
On the defence side one Dr. Muruges (Radiologist in the Government
Hospital, Erode) was examined as DWI. But his evidence is not of much use
because he said that the X-Ray did not reveal any fracture for the appellant.
Two more witnesses were examined for the defence, one among them was a
lady (DW2-Devaki) who said that she and PW3-Poosappan were at Salem on H
94. SUPREME COURT REPORTS [1999] 2 S.C.R.

A 5.10.1984 afternoon for execution of some documents in connection with a
lorry transaction. She proved Ex.D2, a sale receipt bearing the. signature of
PW3 Poosappan dated 5.10.1984.

In fact, when PW3-Poosappan was examined he was asked about the
B said lorry transaction. Though he admitted having sold the lorry mentioned
in that receipt to DW2-Devaki he denied having gone to Salem on 5.10.1984
for that lorry deal.

If PW3-Poosappan was present at Salem at 4.00 pm there is no doubt
that he could not have been present at Erode at 2.30 pm. The trial court and _
C the High Court did not place reliance on Ex.D2- receipt nor on the testimony
of DW2- Devaki. Regarding that evidence High Court has observed that "It
is also likely that the signature of PW3-Poosappan was obtai11ed in Ex.D2
much earlier with blank date and the document was got up on that occasion."
The reason for so holding is that PW3-Poosappan was recorded as present
D ,at the scene of occurrence when the inquest was held by PW16-Investigating
Officer (The Inquest Report says that it was prepared between 5.00 pm and
8~00 pm on 5.10.1984).

The above reasoning of the High Court was strongly assailed by Shri
N.Natarajan, learned Senior Counsel who argued for the appellant which he
E du~bed as putting the cart before the horse because the very object of
examining DW2-Devaki was to show that PW3-Poosappan was not present
at the scene of occurrence. It is contended that if it could be inferred that
PW3 would not have been present at Salem on the j)remise that he was
shown in the Inquest Report as present during the inquest, it could as well
p be inferred from Ex.D2 receipt that PW3 would not have been present at the
scene of occurrence during the time of execution ofEx.D2. Inference, if could
be made this way, it could be the other way around as well, contended the
learned counsel.

For considering the evidence of DW2-Devaki, we have first to address
'G ourselves whether such an item of evidence is legally admissible.

Section 153 of the Evidence Act .is titled as 'Exclusion of evidence to
contradict answers to questions testing veracity.' The main body of the
Section reads thus :

H "When a witness has been asked and has answered any question
VIJAYAN@VIJAYA KUMAR v. STATE REP. BY 1.0. POLICE [THOMAS, J.] 95

which is relevant to the inquiry only in so far as it tends to shake his A
credit by injuring his character, no evidence shall be given to contradict
him; but, if he answers falsely, he may afterwards be charged with
giving false evidence."

Section 153 is based on the decision rendered by Pollock CB in Attorney
General v. Hitchock, (1847) 1 Ex.91 in which the learned Judge observed that B
"a witness may be contradicted as to anything he denies having said provided
it be connected with the issue as a matter capable of being distinctly given
in evidence, or it must be so far connected with it as to be a matter which,
if answered in a particular way, would contradict a part of the witness's
testimony, and if it is neither the one nor the other of these, it is collateral C
to though in some sense it may be considered as connected with, the subject
of enquiry." The rule limiting the right to call evidence to contradict a witness
ori collateral issues excludes all evidence of facts which are incapable of
affording any reasonable presumption or inference as to the principal matter
in dispute. D
But the above rule of prohibition has exceptions which can be discerned
from the Section itself. Among the four illustrations enumerated in the
Section one of them (illustration 'C') is relevant in this conte'i« which is
extracted below : \ '

E
"A affirms that on a certain day he saw 8 at Lahore. A is asked
whether he himself was not on that day at Calcutta. He denies it.
Evidence is offered to show that A was on that day at C~lcutta. The
evidence is admissible, not as contradicting A on a fact which affects
his credit, but as contradicting the alleged fact that 8 was seen on
the day in question in Lahore." F
Thus when the issue is whether PW3-Poosappan was present at the
scene of occurrence evidence can be offered to show that at the very time
he was at a different place. Evidence of that type is not aimed at shaking the
credit of the ~itness by injuring his character. It affects the veracity of the G
testimony irrespective of his character.

Looking at the evidence of DW2-Devaki from the above perspective, it
is admissble in evidence and hence the next question is whether it is a reliable
item of evidence. The High Court felt that it is not reliable mainly because of
the fact that PW3-Poosappan is recorded as present at the inquest which is H
96 SUPREME COURT REPORTS [1999] 2 S.C.R.

A shown to have been held at 5.00 pm.

Learned counsel for the appellant highlighted the fact that the name of
PW3-Poosappan was not mentioned anywhere in the First Information
Statement lodged by PWl-Kandaswamy. According to the learned counsel
PW3 was a later addition to the case. The FIR reached the magistrate
B concerned on the same night at 9.00 pm. But the Inquest Report was not sent
along·with it, perhaps it was not then ready for despatch. But it was sent to
the magistrate on the next day at 9.00 pm. Why it was sent to the magistrate
at such an odd time? That document is not like the FIR about which utmost
promptitude is a requirement of law for despatching to the magistrate. Learned
C counsel contended that despatching the Inquest Report to the magistrate on
the next day at 9.00 pm would, in the circumstances, only lead to the inference
that it would not have come into existence on the night of 5.10.1984.

Whether the said contention can be accepted as correct or not, we are
of the view that authenticity of 02- sale receipt should not stand solely on
.n the premise that PW3-Poosappan was noted as present in the Inquest Report.

In this context a vital circumstance, which the accused has brought on
record, has to be adverted to. DW3-photographer said that he was engaged
by someone in the house of Periyanna to take photographs of the inside of
E that house. On 5.10.1984 at 5.00 pm he took such photographs from different
angles. Ex. D3 and D4 series are those photographs. He said in evidence that
he then saw blood stains in the front portion of the house and in the portico
also. Ex.D5-Cash Bill dated 5.10.1984 marked through him shows the amount
collected by the witness for the work done. The Public Prosecutor who
cross-examined the witness suggested to him that what he saw on the floor
F· of the house was not blood marks but it could have been some chemical
substance. The said suggestion indicates that even the Public Prosecutor did
not dispute the fact that the photographer had taken the photos on 5.10.1984.
However, the suggestion that what he saw was only some chemical element
seems to be too baseless for countenance.
G While considering the right of private defence advanced by the appellant,
the defence version that deceased and his party had tress-passed into .
Periyanna's house and made a retaliatory attack for the forenoon incident has
to be looked at. That version of the appellant had come on official record at
3.00 pm when appellant told like that to PW6-Doctor. We do not think that
H appellant would have had sufficient time to concoct a false story to tell the
VIJAYAN@VIJAYA KUMAR v. STATE REP. BY LO. POLICE [THOMAS, J.] 97

doctor so soon after the incident. A
When the Investigating Officer came to know of such a version of the
appellant one would expect him to check up the hou~e of Periyanna to see
whether the said version of the appellant was true. But PW16 did not produce
any document whatsoever to convince the Court that he did make such
examination of the place of occurrence as mentioned by the appellant at the B
earliest. Though PW16-Investigating Officer made a bid to say that he
inspected the house while conducting a search on the same evening it cannot .
be believed for a moment because no search memorandum was made, no
search-list was drawn up and no witness was collected to be present then. It
is only the ipsi dixit of PW16-Investigating officer unsupported by even a C
scrap of paper that he inspected the house of the accused.

That apart, the injuries sustained by the appellant (extracted supra)
wer~ sought to be explained by the prosecution in a very clumsy manner (in
the FIR there is no reference to the fact that the appellant sustained any such
. injury during the incident). While giving evidence in the Court PWl and D
other prosecution witnesses for the occurrence said that appellant sustained
those injurie's • n second accused Thilakan aimed to inflict a stab injury on
the fallen deceased but it miss-struck on the crown of the head of appellant.
Even assuming that second accused Thilakan would have been a bad striker
it is difficult to conceive that such an aim fumbling whacking would have E
landed on the crown of another man's head.

A poignant circumstance, which it is impossible to ignore, is the normal
human reaction for the forenoon incident. If father of the deceased was
slapped then craving for vengeance would definitely have been on the injured
party of the forenoon episode. When that circumstance is taken along with F
the other broad circumstances adverted to above, the case of appellant that
deceased and PWl together w~th their henchmen had tresspassed into the
house of the appellant for a retaliatory onslaught, appears to be· a probable
story. Hence, we are disposed to believe the defence version that deceased
was the aggressor. G
Though a contention has been advanced on behalf of the respondent
that even in such a situation appellant had exceeded his right of private
defence, we reject the contention because in the broad spectrum of the case
it is not possible to precisely measure the frontier up to which the right of
private defence could have been stretched. H
98 SUPREME COURT REPORTS · [1999)2 S.C.R.

A We are, therefore, inclined to give judicial imprimatur to the plea of
right of private defence advanced by the appellant and hold him not guilty of
the offence of murder. In the result we allow this appeal and set aside the
conviction and sentence passed on the appellant and acquit him. The bail-
bond will stand cancelled.
B NJ. Appeal allowed.