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Right of private defence cannot be weighed in a golden scale and even in absence of physical injury, in a given case, such a right may be upheld by the court provided there is reasonable apprehension to life or reasonable apprehension of a grievous hurt to a person. It is well settled that the onus of proof on the accused as to exercise of right of private defence is not as heavy as on the

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1453 OF 2005
RANJITHAM … APPELLANT
Versus
BASAVARAJ & ORS. … RESPONDENTS
WITH
CRIMINAL APPEAL NO.1700 OF 2005
STATE BY INSPECTOR OF POLICE,

DHARMAPURI POLICE STATION,

TAMIL NADU … APPELLANT
Versus
SWAMIKANNU & ORS. … RESPONDENTS
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. These two appeals, by special leave, can be disposed of
by a common judgment as they challenge the judgment and
2

order dated 14/3/2005 passed by the Madras High Court in
Criminal Appeal No.130 of 1997 filed by Swami Kannu,
Basavaraj, Kumaran, Kanagaraj and Gnanapazham (original
accused 1 to 5 respectively) who are hereinafter referred to
as “A1” to “A5” respectively for convenience.

2. In Sessions Case No. 151 of 1993, A1 to A5 were
charged for offence punishable under Section 147 of the IPC.
A2 and A4 were charged for offence punishable under
Section 148 of the IPC. A2 to A5 were charged for offence
punishable under Section 341 of the IPC. A1 was charged
for offence punishable under Section 149 read with Section
341, offence punishable under Section 109 read with section
324 and offence punishable under Section 109 read with
Section 302 of the IPC. A4 was charged for offence
punishable under Section 324 of the IPC. A2, A3 and A5
were charged for offence punishable under Section 149 read
with Section 324 of the IPC. A2, A3 and A5 were charged
for offence punishable under Section 323 of the IPC. A2 was
3

charged for offence punishable under Section 302 of the IPC.
A3, A4 and A5 were charged for offence punishable under
Section 149 read with Section 302 of the IPC.

3. The case of the prosecution needs to be narrated in
brief.

4. A2 to A5 are the sons of A1. PW-1 Pandurangan is the
younger brother of deceased Ranganathan, who was a
former Member of Legislative Assembly. He was a member
of ADMK political party. He used to, inter alia, run a rice
mill. A1 to A5 were residing at Dharmapuri while the
deceased was a resident of Madhikonpalayam Village. The
relations between the accused and the deceased were
strained.

5. On 11/11/1992 at about 7.30 p.m. PW-1 Pandurangan,
PW-4 Jabbar and one Nanjappan were sitting near a bus
stop at Dharmapuri. The deceased was also present. On
4

seeing A2, the deceased asked PW-1 to go and collect
donation for organizing a meeting at Dharmapuri in
connection with the visit of a Minister. A2 refused to pay the
amount and made some disparaging remarks about the
deceased. The deceased got annoyed and told him that if he
is not willing to pay donation he may not pay but he should
not make such comments. A2 persisted in making
comments and told the deceased that he will finish him one
day. PW-1 intervened in the quarrel. Thereafter, the
deceased and PW-1 got into a car and went to
Madhikonpalayam. They alighted near the rice mill. They
were discussing about the ensuing marriage of PW-1’s son.
At about 1.15 p.m. PW-1 came out of the rice mill and saw
A1 to A5 coming from the east. On seeing PW-1, A2 to A5
held his hands and A1 instigated others to kill him. A4 beat
PW-1 with a cycle chain on his head, back of chest and left
side of the wrist. The others beat him with hands. PW-1
raised alarm. The deceased came out of the rice mill and
intervened. A1 instigated his sons to kill him. Thereafter A3
5

to A5 held the hands of the deceased and A2 stabbed the
deceased on the left side of his chest. The deceased fell
down and all the accused ran away. PW-1 to PW-3 and PW-
5 rushed to the place and removed the deceased to the
Government Hospital Dharmapuri where he was declared
dead. PW-1 then went to Dharmapuri Police Station and
lodged his FIR (Ex.P-1). A2 was arrested on 19/11/1992.
A3 was arrested on 20/11/1992. The other accused
surrendered. After completion of the investigation the
accused were charged as aforesaid.

6. In support of its case, the prosecution examined as
many as 21 witnesses. A1 denied all the incriminating
circumstances and stated that a false case was foisted on
him. Version of A2 as evident from his statement under
Section 313 of the Code of Criminal Procedure (for short,
“the Code”), is important and needs to be stated. He
admitted that there was a dispute between his family and
the family of the deceased. The deceased and A1 belonged
6

to different political parties. According to him, PW-1 did not
ask for any donation from A2. Donation was asked by a
candidate from the political party to which the deceased
belonged and A2 made a remark that the amount, which has
already been collected, can be utilized for the meeting and
the deceased should not use such tactics. On 11/11/1992
the situation in Madhikonpalayam village was tense. When
he was going to his father’s house he learnt that he and his
family members were going to be beaten up by persons
belonging to the deceased’s political party and that at 9.30
p.m. they are going to burn tyres and throw them on their
rice mill. He, therefore, asked his father and other members
of his family to leave the house and take shelter at a
different place. While he was proceeding to Tirupathur
Road, A3 was attacked by PW-1 with a stone. A3 ran away
from the place. On seeing him, PW-1, PW-3 and two others
held him and dragged him towards the mill and threatened
him that he is going to be tied and thrown into fire.
According to A2 in order to escape from their attack and
7

save his life, he took out a penknife, which was in his key
bunch, and stabbed generally with it without targeting
anybody or any part of the body and, thereafter, ran to
Madhikonpalayam Police Station and surrendered. A3 was
at the Police Station. A complaint was given to the Police
Officer about the burning of his rice mill but the Police
Officer did not record the said complaint. He also stated
that the henchmen of the deceased damaged their
properties, but the police did not take any action against
them because they belonged to a particular political party.
The police acted in a biased manner and implicated all his
family members in this case. He denied that A1 instigated
A4 to beat PW-1 with a cycle chain. He did not handover
knife (M.O.-1) to the police. A3 filed a written statement and
took a similar stand.

7. The trial court held A1 to A5 guilty under Section 147
of the IPC and sentenced each one of them to simple
imprisonment for one year. A1 was found guilty under
8

Section 302 read with Section 109 of the IPC and sentenced
to life imprisonment. A2 was found guilty under Section 148
of the IPC and sentenced to 18 months simple
imprisonment. A2 was found guilty under Section 302 of the
IPC and sentenced to life imprisonment. A2, A3 and A5 were
found guilty under Section 341 of the IPC. Each one of them
was sentenced to 2 weeks simple imprisonment. A3, A4
and A5 were found guilty under Section 302 read with
Section 149 of the IPC and each one of them was sentenced
to life imprisonment. A1 was found not guilty of offence
punishable under Section 341 read with Section 149 of the
IPC and Section 324 read with Section 109 of the IPC. He
was acquitted of the said charges. A2, A3 and A5 were held
not guilty of offences punishable under Section 324 read
with Section 149 and Section 323 read with Section 34 of
the IPC. They were acquitted of the said charges. A4 was
found not guilty of the charge under Section 148 and 324 of
the IPC, he was acquitted of the said charge. The
substantive sentences were directed to run concurrently.
9

8. The High Court acquitted A2 holding that A2 had
stabbed the deceased in exercise of his right of private
defence. The High Court further held that since A2 had
stabbed the deceased in exercise of his right of private
defence, there was no question of the other accused
instigating him to stab the deceased. The High Court
acquitted all the other accused.

9. Criminal Appeal No.1700 of 2005 is filed by the State of
Tamil Nadu and Criminal Appeal No.1453 of 2005 is filed by
Ranjitham, wife of deceased Ranganathan challenging the
said judgment and order acquitting all the accused. During
the pendency of these appeals A1 (Swami Kannu) has died.
As against him the appeals have abated.

10. Counsel for the appellants vehemently contended that
the impugned order is perverse. Counsel submitted that the
High Court was wrong in accepting the argument that A2
10

attacked the deceased in exercise of his right of private
defence. Counsel submitted that it is the accused who were
the aggressors and, therefore, plea of private defence could
not have been raised by them. Counsel submitted that the
High Court did not take note of the unassailable findings of
trial court. Counsel submitted that there is cogent and
adequate evidence of eye-witnesses which has been
overlooked and, therefore, it is necessary to set aside the
impugned judgment and order.

11. Counsel for the accused, on the other hand, submitted
that substantial part of the prosecution story is disbelieved
by the trial court. This being an appeal against order of
acquittal, this Court should be slow in disturbing the order of
acquittal. Counsel submitted that the evidence on record
clearly establishes the theory of right of private defence and,
hence, the appeals deserve to be dismissed. Counsel
submitted that, in any event, so far as A2 is concerned,
intention to kill the deceased cannot be attributed to him.
11

He could be convicted only under Section 304 Part II of the
IPC.

12. We are dealing with an appeal against acquittal. We
are mindful of the principles laid down by this Court through
a long line of judgments which guide a court dealing with an
appeal against an order of acquittal. Unless it appears to us
that the impugned judgment is perverse, we cannot
interfere with it. If the view taken by the court acquitting
the accused is a reasonably possible view, we cannot disturb
it because the presumption of innocence of the accused is
strengthened by the order of acquittal. If two views are
possible on appreciating the evidence and if the view taken
by the acquitting court is a reasonably possible view we
cannot substitute it by the other view just because it
appears to us to be a possible view. Keeping these well
established principles in mind we shall approach this case.
12

13. The strained relationship between the family of the
deceased and the complainant’s family, is admitted. They
are related to each other. It is also apparent from the
evidence on record that the deceased belonged to ADMK
political party and the complainant’s family belonged to the
rival political party. In fact, the incident in question is
preceded by some discussion about collection of donation for
the expenses of the proposed meeting of a Minister.

14. That the deceased was stabbed by A2 is admitted. A2
has taken up the defence of right of private defence. In
several decisions, this court has considered the nature of
this right. Right of private defence cannot be weighed in a
golden scale and even in absence of physical injury, in a
given case, such a right may be upheld by the court
provided there is reasonable apprehension to life or
reasonable apprehension of a grievous hurt to a person. It
is well settled that the onus of proof on the accused as to
exercise of right of private defence is not as heavy as on the
13

prosecution to prove guilt of the accused and it is sufficient
for him to prove the defence on the touchstone of
preponderance of probabilities (See Sat Narain v. State of
H
aryana 1
)
. In V Subramani & Anr. v. State of Tamil
N
adu 2
, this Court examined the nature of this right. This
court held that whether a person legitimately acted in
exercise of his right of private defence is a question of fact
to be determined on the facts and circumstances of each
case. In a given case it is open to the Court to consider
such a plea even if the accused has not taken it, but the
surrounding circumstances establish that it was available to
him. The burden is on the accused to establish his plea.
The burden is discharged by showing preponderance of
probabilities in favour of that plea. The injuries received by
the accused, the imminence of threat to his safety, the
injuries caused by the accused and whether the accused had
time to have recourse to public authorities are all relevant
factors to be considered.

1 (2009) 17 SCC 141

2 (2005) 10 SCC 358
14

15. Whether A2 stabbed the deceased in exercise of his
right of private defence will have to be considered in the
light of the above principles. The High Court while holding
that A2 exercised his right of private defence, accepted A2’s
explanation that A2 had to stab the deceased because his
properties were destroyed and henchmen of the deceased
dragged him with a view to tying him and throwing him into
the fire. The High Court has also observed that PW-19
Inspector Selvaraj has admitted that during the incident,
rice mill of A2, home of A1 and property of A3 were burnt
and though he received information about the said incident
at 3.30 a.m. on 12/9/1992, he did not register the
complaint. The High Court also noted that PW-16 Dr.
Asokan has, after examining A3, stated that he had found
that A3 had sustained an injury. This injury, which was
caused during the course of the same incident, has not been
explained by the prosecution. The High Court, therefore,
concluded that A2 had reasonable apprehension that death
15

or grievous hurt will be the consequence of the acts of the
deceased and his people and, therefore, he stabbed the
deceased in exercise of his right of private defence. It is not
possible for us to concur with the High Court on this
issue.

16. PW-1 has stated in his evidence that the incident
occurred near their rice mill. There is no challenge to this
statement. PW-19 Selvaraj, the Investigating Officer has
been cross-examined at length but no suggestion is put to
him that the incident of stabbing did not take place near the
rice mill of the deceased. Thus, it is clear that the accused
had gone to the rice mill of the deceased. It is also
pertinent to note that as per certificate (Exh.13) issued by
PW-14 Dr. Ramakrishnan, PW-1 had received simple
injuries.

17. To establish the right of private defence, the accused
have not laid any evidence. We have narrated, in detail, the
16

gist of A2’s statement under Section 313 of the Code.
Defence of A3 is also on similar lines. In short, A2’s case is
that prosecution witnesses were aggressors. According to
him the atmosphere in the village was tense and there was a
threat that the rice mill and properties of the accused would
be set on fire by throwing burning tyres on them and, in
fact, the properties of the accused were set on fire. The
police adopted a partisan approach. They did not register
the complaint. It is further stated by A2 that while he was
approaching Tirupathur Road, A3 received a stone injury.
He ran away. On seeing A2, PW-1, PW-3 and others
dragged him towards the mill and threatened him that he is
going to be tied and thrown into fire and, therefore, in order
to escape from the attack he stabbed with a penknife
without targeting anybody. But the evidence on record does
not probabalise the defence version that the burning of the
properties of the accused was done before A2 stabbed the
deceased. PW-19 Inspector Selvaraj has stated that he
came to know at 3.30 a.m. on 12/11/1992 that the rice mill
17

and he properties of the accused were burnt. It is pertinent
to note that as per FIR (Annexure P-1) recorded on
12/11/1992, the incident took place at 10.15 p.m. on
11/11/1992. It is not clear as to when exactly the burning
of properties of the accused took place. It is possible,
therefore, that the said incident was a reaction to the
murder of Ranganathan, the deceased. There is, however,
some substance in the contention of counsel for the accused
that the police did not promptly register the complaint of the
accused that their properties were burnt. This is supported
by the evidence of PW-18 S.I. Thangaraj and PW-19
Inspector Selvaraj. We record our dissatisfaction about this
inaction of the police. But, this does not lead us to
conclude that there was imminent threat to the properties of
the accused when the stabbing incident took place.

18. It is true that A3 received injury during the course of
this incident. But, according to PW-16 Dr. Asokan, it was a
simple injury. Its non-explanation by the prosecution, in the
18

facts of this case, does not have any adverse impact on the
prosecution case. The fact that the accused had gone to the
rice mill of the deceased is a circumstance which needs to be
taken into account while considering the plea of right of
private defence and it makes an irreparable dent in the said
plea. The High Court was, therefore, clearly in error in
drawing an inference that A2 stabbed the deceased in
exercise of his right of private defence. It is not possible for
us to concur with this finding of the High Court. In our
opinion, to this extent, the High Court’s finding is perverse
and needs to be set aside.

19. What needs to be decided now is what offence has A2
committed. A2 has inflicted one stab wound on the
deceased with a penknife after an altercation between the
two sides. The blow landed on the chest, a vital part of the
body of the deceased. The question is whether A2 is guilty
of murder or culpable homicide not amounting to murder.
19

20. In H
ari Ram vs. State of Haryana 3
, there was an
altercation between the appellant and the deceased. The
appellant had remarked that the deceased must be beaten
to make him behave. He thereafter ran inside the house,
brought out a jelly and thrust it into the chest of the
deceased. This Court observed that in the heat of
altercation between the deceased on the one hand, and the
appellant and his comrades on the other, the appellant
seized a jelly and thrust it into the chest of the deceased.
This was preceded by his remark that the deceased must be
beaten to make him behave. Therefore, it does not appear
that there was any intention to kill the deceased. This
Court, therefore, set aside the conviction of the appellant
under Section 302 of the IPC and instead convicted him
under Section 304 Part II of the IPC and sentenced him to
suffer rigorous imprisonment for five years.

3 (1983) 1 SCC 193
20

21. In J
agtar Singh vs. State of Punjab 4
, in a trivial
quarrel the appellant wielded a weapon like a knife and
landed a blow on the chest of the deceased. This Court
observed that the quarrel had taken place on the spur of the
moment. There was exchange of abuses. At that time, the
appellant gave a blow with a knife which landed on the chest
of the deceased and therefore, it was permissible to draw an
inference that the appellant could be imputed with a
knowledge that he was likely to cause an injury which was
likely to cause death but since there was no premeditation,
no intention could be imputed to him to cause death. This
Court, therefore, convicted the appellant under Section 304
Part II of the IPC instead of Section 302 of the IPC and
sentenced him to suffer rigorous imprisonment for five
years.

22. In H
em Raj v. The State (Delhi Administration) 5
,
the appellant and the deceased had suddenly grappled with

4 1983 (2) SCC 342

5 1990 (Suppl.) SCC 291
21

each other and the entire occurrence was over within a
minute. During the course of the sudden quarrel, the
appellant dealt a single stab which unfortunately landed on
the chest of the deceased resulting in his death. This Court
observed that as the totality of the established facts and
circumstances show that the occurrence had happened most
unexpectedly, in a sudden quarrel and without premeditation
during the course of which the appellant caused a solitary
injury to the deceased, he could not be imputed with the
intention to cause death of the deceased, though knowledge
that he was likely to cause an injury which is likely to cause
death could be imputed to him. This Court, therefore, set
aside the conviction under Section 302 of the IPC and
convicted the appellant under Section 304 Part II of the IPC
and sentenced him to undergo rigorous imprisonment for
seven years.

23. In V. Subramani, there was some dispute over
grazing of buffaloes. Thereafter, there was altercation
22

between the accused and the deceased. The accused dealt
a single blow with a wooden yoke on the deceased. Altering
the conviction from Section 302 of the IPC to Section 304
Part II of the IPC, this Court clarified that it cannot be laid
down as a rule of universal application that whenever death
occurs on account of a single blow, Section 302 of the IPC is
ruled out. The fact situation has to be considered in each
case. Thus, the part of the body on which the blow was
dealt, the nature of the injury and the type of the weapon
used will not always be determinative as to whether an
accused is guilty of murder or culpable homicide not
amounting to murder. The events which precede the incident
will also have a bearing on the issue whether the act by
which death was caused was done with an intention of
causing death or knowledge that it is likely to cause death
but without intention to cause death. It is the totality of
circumstances which will decide the nature of the offence.
23

24. The deceased received a single stab injury. PW-15 Dr.
Subramani, who did the postmortem has described the said
injury as a stab injury seen at the left chest, that is, junction
of second rib bone and chest bone. On internal
examination, he found that the injury had gone inside the
left chest through the lungs into the heart. Undoubtedly,
the injury was serious and on a vital part of the body, but it
was caused by a penknife, which was in key bunch of the
accused. A key bunch is carried by a person in routine
course and a penknife is used for odd jobs, which a person
may be required to do during the course of the day. It is
not possible for us to say, in the facts of this case, that A2
had carried the penknife which was in his key bunch to stab
the deceased. The background of this case also needs to be
kept in mind. This case appears to have political overtones.
The accused and the deceased belonged to different political
parties. Admittedly, there was enmity between the two
sides. There had been an altercation between the deceased
and PW-1 on the one hand and the accused on the other
24

hand. PW-1 had, at the instance of the deceased, asked for
donation from A2 and A2 is stated to have made some
disparaging remarks. The situation in the village was tense.
The accused had then gone to the rice mill of the deceased.
There again, there was an altercation between the two
sides. The circumstances on record clearly indicate that A2
stabbed the deceased without premeditation, in a sudden
fight in the heat of passion. His case falls in Explanation 4
to Section 300 of the IPC. A2 knew that the act by which
the death was caused was likely to cause death but it
appears to us that he had no intention to cause death. In
the light of the abovementioned judgments of this court, this
in our opinion, is a fit case where A2-Basavaraj should be
convicted for the offence of culpable homicide not amounting
to murder and should be sentenced for five years rigorous
imprisonment under Section 304 Part II of the IPC. Needless
to say that he must be given set off for the period already
undergone by him.
25

25. So far as A1, A3, A4 and A5 are concerned, we are,
however, of the view that the High Court was right in
acquitting them. PW-1, PW-2 and PW-3 are eye-witnesses.
PW-1 has stated that A4 had levelled attack on his head,
back and chest with a cycle chain. The cycle chain is not
recovered. PW-14 Dr. Ramakrishnan, who has examined
him has stated that the injuries suffered by PW-1 were
simple injuries. PW-14 Dr. Ramakrishnan has further stated
that if the injuries suffered by PW-1 were caused by a cycle
chain, they would have caused imprint and he had not found
any imprint injuries on PW-1’s body. So far as PW-2 is
concerned, he has rightly been disbelieved by the trial court
because his name is not mentioned in the FIR and the
evidence of PW-1 and PW-3 do not establish his presence.
PW-3 has given a version similar to that of PW-1. It is
pertinent to note that though PW-1 has stated that his
clothes were stained with blood, no such clothes were
recovered. All this leads us to conclude that the prosecution
26

story narrated by PW-1, PW-2 and PW-3 about the use of
cycle chain to beat PW-1 has rightly been disbelieved by the
trial court. A4 is, therefore, acquitted of charge under
Section 324 of the IPC. Since charge against A4 that he had
attacked PW-1 with cycle chain has failed, the trial court has
acquitted A1 of the charge that he had instigated A4 to
attack PW-1 with a cycle chain. Consequently A2, A3 and
A5 have also been acquitted of offence under Section 324
read with Section 149 of the IPC in respect of the alleged
cycle chain attack on PW-1. It is observed that they had no
intention to attack PW-1 with a cycle chain. The evidence on
record clearly establishes that only A2 had a penknife in his
key bunch. The other accused did not have any weapon
with them. The trial court has observed that the medical
evidence does not bear out the story that A2, A3, A5 had
attacked PW-1 with hands. Eye-witnesses have also not
stated so. Therefore, A2, A3 and A5 have been acquitted of
the charge under Section 323 read with Section 34 of the
IPC. The trial court has held that A1 had no intention to
27

wrongfully confine PW-1. He is, therefore, acquitted of
charge under Section 341 read with Section 149 of the IPC.
Having considered the evidence on record in depth, we are
of the considered opinion that so far as A1, A3, A4 and A5
are concerned, the substratum of the prosecution story has
given way. To hold them guilty for the stabbing of the
deceased with the aid of Section 149 or to hold them guilty
of murder with the aid of Section 109 after setting aside
their order of acquittal, in our opinion, would not be proper
because there is nothing perverse about the High Court’s
order so far as their acquittal is concerned. In the result, we
pass the following order:

26. A2-Basavaraj is convicted for culpable homicide not
amounting to murder punishable under Section 304, Part II
of the IPC. For the said offence, he is sentenced to suffer
rigorous imprisonment for five years. Learned First
Additional District Judge and Chief Judicial Magistrate,
Dharmapuri at Krishnagiri is directed to ascertain whether
28

A2-Basavaraj has undergone any sentence. If he has
already undergone five years’ sentence, then it is not
necessary to arrest him. If he has undergone less than five
years’ sentence, then he is directed to be taken in custody
so that he serves rest of the sentence. If he has undergone
any sentence, he is directed to be given set off for the same.
In that case, after completion of the sentence, he is directed
to be released from custody unless he is required in any
other case.

27. Appeals are partly allowed in the aforestated terms.

……………………………………………..J.

(AFTAB ALAM)
……………………………………………..J.

(RANJANA PRAKASH DESAI)
NEW DELHI

NOVEMBER 28, 2011.

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