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Madras Law Journal - Criminal/1969/Volume 1/Vasudeva Pillai and another Versus State of Kerala -- [1969] 1 MLJ (Crl) 553 (1969) 1 MLJ (Crl) 553

Vasudeva Pillai and another Versus State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM. Mr. Justice T.C. Raghavan and Mr. Justice M.U. Isaac, JJ. Crl. App. No. 60 of 1967. 30th November, 1999.. Versus Penal Code (XLV of 1860), section 97 , 99 , 100 and 103 and Evidence Act (I of 1872), section 105 -Right of private defence of person and property -- Need not be specifically pleaded -- Burden of proving the existence of exemptional circumstances under section 105 lies on accused.Evidence Act (I of 1872) section 27 -- Information by accused that knife used for stabbing had been thrown off by the side of the tank -- While searching the premises of the tank information received that a girl found a knife underneath a shrub nearby the bathing ghat and handed over to another person who on demand by Police produced the knife -- Discovery made pursuant to the above information whether falls within section 27 -- Scope aud ambit of section.Penal Code (XLV of 1860), section 300-A -Exceptions 1,2 and 4 -- Culpable homicide not amounting to murder -- Accused inflicting injuries on deceased in a cruel and unusual manner not in exercise of right of private defence and without any sullen quarrel or fight but acting whilst deprived of self-control by grave and sullen provocation -Exception 1 applicable. It is not open to controversy that the burden of proving the existence of circumstances bringing the case within the exercise of private defence is on the accused person. This is an inescapable position of the statutory law. The burden is always on the accused to prove his right of private defence, if his act is sought to be justified on this ground. But section 105 of the Evidence Act does not affect, or detract from, the golden rule of criminal jurisprudence that the prosecution must prove beyond reasonable doubt the guilt of the accused. So, if the evidence in the case shows that it is quite probable that the accused did the alleged act in exercise of his right of private defence, it creates a reasonable doubt in the prosecution case. In other words, the prosecution fails in such a state of evidence to establish the guilt of the accused beyond reasonable doubt; and the accused is entitled to acquittal. In a case where an accused is thus entitled to acquittal, it is not relevant whether he has put forward a plea of private defence or has established any such plea. Section 27 of the Evidence Act is really an exception to section 25 , which enacts that no confession made to a Police Officer shall be proved as against (1969) 1 MLJ (Crl) 553 at 554 a person accused of any offence. The principle underlying the exception is that, if some relevant fact that has been discovered in consequence of an information obtained by the Police from an accused person, some guarantee is afforded by the discovery of the said fact that the information was true and it can, therefore be safely allowed to be given in evidence. What is made admissible in evidence by this section is so much of the information received from an accused person by a Police Officer as relates distinctly to any fact discovered in consequence is the said information. The relevancy of the said information and of the fact discovered is governed by other provisions of the Evidence Act. Now in this case, the fact discovered is the knife (M.O. 1) and if it was discovered consequent on any information received from the first accused so much of the information which distinctly relates to its discovery is admissible in evidence. Whether it was discovered consequent on the said information is mainly a question of fact. The evidence in this case shows that it was the information which the first accused gave to the Police to the effect that he has thrown away

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the knife by the side of the tank, which caused them to search the premises of the tank. It was during the course of that search that the Police got the further information that the knife had been picked from that place by the girl, and handed over to another person. Thus the information received from the first accused led to the discovery of the knife. Exception 2 has no application, because on the facts found, there was no scope for the exercise of any right of private defence. Exception 4 has also no application to this case; because there was neither any sudden quarrel nor sudden fight between the first accused and the deceased and the first accused has also acted in a cruel and unusual manner in stabbing the deceased with a fata weapon at vital parts of his body and causing his death on the spot. The next exception which fails for consideration is Exception I. Considering the manner in which the first accused behaved towards Shivaji at the beginning, and the attitude of P.W. 3 in having followed Shivaji up to the gate and trying to pacify him, in spite of his objectionable and provocative conduct, and the manner in which Shivaji was conducting himself in that night, it is highly probable that, after coming back to the verandah, Shivaji must have behaved in such a way as to deprive the first accused of his power of self-control. The conduct of the first accused in inflicting such fatal injuries on Shivaji cannot be understood on any other hypothesis. Therefore, it has to be held that, on the facts and circumstances of the case, Exception I to section 300 , Indian Penal Code applied to the case. It is also clear from the nature of the injuries, the parts of the body where they were inflicted and the weapon used, that the offence falls under the first part of section 304 , Indian Penal Code. Criminal Appeal from S.C. No. 94 of 1966 of Sessions Court, Trivandrum. CASES REFERRED TO : Mithu Pandey v. State of Bihar A.I.R. 1966 Pat 464 State of U. P. v. Jagdish A.I.R. 1966 All. 244 Bhikari v. State of U. P. [1966] MLJ. (Crl.) 561 ; [1966] 2 S.C.J. 28; [1965] 6 S.C.R. 194; A.I.R. 1966 S.C. 1 V. Nagappan Nair, V. Sreedharan Nair and V.N. Achutha Kurup, for Appellants. State Prosecutor, for State. The Judgment of the Court was delivered by Isaac, J.This is an appeal from the judgment of the Sessions Judge, Trivandrum, dated 8th February, 1967 by accused Nos. 1 and 2 in Session Case No. 94 of 1966. They were tried in that case along with the wife of the second accused. The first accused was charged for the offence under section 302 , Indian Penal Code (1969) 1 MLJ (Crl) 553 at 555 for murder of one Shivaji; and all the three accused were charged for the offence under section 201 , Indian Penal Code for causing one item of evidence of he commission of the offence to disappear. The first accused was found guilty under both counts; and he was sentenced to imprisonment for life for the offence under section 302 , and to three years' rigorous imprisonment for the offence under section 201 . The second accused was convicted for the offence under section 201 , and sentenced to three years' rigorous imprisonment, while the 3rd accused was acquitted. Hence accused 1 and 2 have filed this appeal against their conviction, and the sentences passed against them. The facts of the case as presented by the prosecution, can be briefly stated. The first accused is aged about 52 years; and he has been residing in Trivandrum in House T.C.No. 21/918 for the past few years. He has been conducting two lodges in the City, one for males under the style Jayamohan Lodge, another for women under the style Jaya Lodge. P.W. 3 Devaki Amma, who is said to be his second wife, is the warden of the women's Lodge. She has no issues. The House T.C. No. 21/918 is situate on the northern side of the Press Road, which goes to the east from Pulimood Junction on the main Road to the Model School Junction. On the Press Road, there is a junction, called Fire Service Station Junction. One hundred and fifty feet to the west of this junction, there is a lane of 412; feet width, going from this road towards the north. About 30 feet

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to the north of the entrance to the lane from the Press Road, is the Southern Boundary wall of the compound, in which the first accused's house is situate. The entrance to his house is from this lane, and the gate is adjacent to the above compound wall. Between the house and the Press Road there is a lodge, called Capital Annex Lodge. Adjoining this Lodge and the house and to the west, is the Jayamohan Lodge. The Government Press is on the northern side of the Jayamohan Lodge and the first accused's house. Opposite to the entrance from the Press Road to the lane leading to his house, and the southern side of the said road is the City Improvement Trust Colony. The Jaya Lodge is also on the Press Road, at about half a furlong to the east of the Fire Service Station Junction. The deceased Shivaji was about 32 years old at the time of his death. He came from a respectable Nair family in Nileswar, high up in social position. He was formerly an Advocate, and at the time of the occurrence, the Regional Representative of the Hindustan Motors Ltd., for Kerala. At that time he was residing at Trivandrum with his wife, who was then employed in the Women and Children's Hospital, Trivandrum. Unfortunately, as it turned up Shivaji happened to take some interest in P.W. 6, a young girl aged 19 years, by name Vasumathi. She also came from Nileswar, and appears to be a poor relative of Shivaji. She has studied up to the School Final Class, and she came to Trivandrum towards the end of the year 1965, hoping that she could get some employment through the influence of Shivaji. For the first two or three months, she lived in one Arundhathi Lodge; and subsequently with effect from 26th January 1966, she shifted her residence to the Jaya Lodge, run by the first accused. She continued to live in this Lodge till the date of occurrence and thereafter for a few days more. During her stay at Trivandrum, she was maintained by Shivaji, and he was her local guardian. She was passing off as Shivaji's sister; and Shivaji used to take her for outings as often as he wanted. During his wife's absence from house, he also used to take her home. This was all being done with the knowledge of P.W. 3, the warden of the Lodge Apparently, their relation was not lawful. This is how Shivaji and Sumathi were living at Trivandrum. On the evening of 17th September 1966, Shivaji went to the Jaya Lodge, visited Sumathi, gave her Rs. 80}for her expenses, and went away saying that he would meet her after two or three days. But after mid-night on that day (1969) 1 MLJ (Crl) 553 at 556 Shivaji went to the Lodge again in his car for the purpose of taking her out. He found the gate of the Lodge locked; and he was informed by P.W. 9, the watchman, that P.W. 3, who sometimes used to sleep in the Lodge, had on that day gone home after locking the gate. Shivaji asked him where her house was; and P.W. 9 told him about it. Thereupon, Shivaji reversed his car towards the Fire Service Station Junction; and stopped it by the side of a tea shop at that junction. This shop belonged to one Thankappan, whose brother is P.W. 4, Krishnan; and he was at that time in charge of the tea shop. Nearby, there is a water tap, where Shivaji saw P.W. 10, Maichael Adima and his wife drawing water. He asked P.W. 10 whether P.W. 10 could show him the house of the first accused, with whom P.W. 3 was residing; and P.W. 10 replied in the negative. Then Shivaji moved his car towards the tea shop, and stopped it by the side of P.W. 1, Thankappan Nair, who was then standing in front of the tea shop. Shivaji asked P.W. 1 whether he could show him the house of P.W. 3. P.W. 1 pointed out to him the direction to the house, when Shivaji requested P.W. 1 to accompany Shivaji to the house. P.W. 1 told him that he may proceed in his car, and that P.W. 1 would follow Shivaji on his bicycle. Shivaji again reversed his car, and driving westwards along the Press Road, stopped it at the entrance of the lane to the first accused's house. By this time, P.W. 1 came by the side of the car. Shivaji walked towards the gate of the first accused, followed by P.W. 1; and they found that the gate was fastened from inside. Shivaji told P.W. 1 that he had to talk some thing to the person whom he was going to meet and requested P.W. 1 to wait till it was over. P.W. 1 agreed. Shivaji called out "Hullo, Hullo" and there was no response from the house. Then Shivaji pushed the gate with force, when it opened by itself. He proceeded to the court-yard of the house followed by P.W. 1 and again called out "Hullo", Hullo". Then the light on the veranda was put on; and the first accused opened the door, and came out to the veranda. At this stage, it is necessary to have a clear picture of the house, which we get from the description of the place of occurrence in Exhibit P-12, the inquest report. The house has got its frontage to the south. It has got a central hall room, with a door in the middle of the southern wall. The first accused and P.W. 3 were sleeping on that day in this room. The door opens to a veranda, which has a length of 33 feet east to west and a width of 5 feet. To the south of the veranda, is a court-yard, which has got a length of 34 feet east to

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west and width of 5 feet. The veranda has a height of 3 feet from the level of the court-yard. The distance from the gate to the eastern end of the court-yard is 20 feet. There is one room to the west, and two rooms to the east of the central hall room. Further particulars of the house are not necessary. P.W. 2 is a student, aged 17 years; and he was then living in the western room of the house, and studying for the Pre-degree examination to be held in the ensuing September. P.W. 18 is a servant maid, aged 17 years, and on the night of the occurrence, she was sleeping in one of the eastern rooms along with P.W. 3's mother, who had then come to Trivandrum for treatment of her eyes. The gate of the house is one made by two pieces of tin sheets fixed to a wooden frame. It has a width of 3 feet and a height of 4 feet. To proceed with the prosecution case, when the first accused saw Shivaji, the first accused offered one of two chairs lying in the veranda to Shivaji, wherein Shivaji sat; and the first accused sat in the other chair. Then Shivaji told the first accused that Shivaji's child was ill, that he had come to take his sister Vasumathi home from the Jaya Lodge, and that Vasumathi may be sent with him immediately. The time was then about 2.00 A.M. and the first accused told him that it was not possible to send the girl with Shivaji at such an odd hour. But Shivaji persisted in his demand; and the first accused persisted in his refusal to oblige Shivaji. Then Shivaji told the first accused that he (1969) 1 MLJ (Crl) 553 at 557 would talk to P.W. 3; and he tried to pursuade P.W. 3 to send Vasumathi along with him. P.W. 3 also declined to oblige Shivaji, and the first accused and P.W. 3 positively told Shivaji that, whatever may be the ground, it was not possible to send Vasumathi along with Shivaji at that part of the night, and that he could come and take her away in the morning if he wanted. Apparently Shivaji was thoroughly disappointed and displeased; and he walked out, saying that he would see about this. The first accused got offended by these remarks; and he went into the house asking Shivaji what he could do against him. Shivaji and P.W. 1 proceeded towards the gate, and P.W. 3 was talking to Shivaji. Then the first accused came out of the house with a knife in his hand, ran up to Shivaji and beat him on his left cheek. He beat him two or three times more, which were warded off by Shivaji. Then the first accused pushed Shivaji violently, as a result of which Shivaji fell on the fence. At once P.W. 3 held the first accused, and took him to the court-yard. Shivaji got up, walked back to the court-yard, where the first accused was standing, and asked the first accused why he beat Shivaji, and said that he had not committed any wrong. The first accused apparently got infuriated at the conduct of Shivaji; he took his knife and stabbed Shivaji on his left chest. On receiving the stab, Shivaji cried out, and bent down, whereupon the first accused administered another stab on Shivaji on his back. Shivaji fell down on the spot, and died within a few minutes. P.W. 1 ran away from the place, on seeing the first stab. He went back to the tea shop, and reported the matter to P.W. 4 and to one Krishnan, a barber who was running a saloon in the adjacent shop. Then they saw two Police Constables, P.W. 19, and P.W. 20, who were on beat duty standing at the Fire Service Station Junction. P.W. 1 went and reported the matter to these Constables They went to the place of occurrence, and saw Shivaji lying dead on the courtyard in a pool of blood and with stab injuries. The Constables wanted P.W. 1 to report to the nearest Police Station what he saw about the occurrence. One of them (P.W. 20) guarded the dead body; and the other took P.W. 1 to the Cantonment Police Station. P.W. 34, the Sub-Inspector of Police, who was then in charge of the Station, took a statement from P.W. 1, and registered a crime against the first accused for the offence under Section 302 , I.P.C. at 3 A.M. Exhibit P-1 is the statement of P.W. 1; and Exhibit P-21 is the first information report. P.W. 34 reported the matter immediately to the Assistant Commissioner of Police, and proceeded to the house, where the murder was reported to have taken place. He reached there at about 4 A.M. P.W. 2, the September student, P.W. 3, the 2nd wife of the first accused, P.W. 11, one of the sons of the first accused through the first wife, P.W. 18, the maid servant, and the mother of P.W. 3 were then in the house. He interviewed P.W. 3, P.W. 11 and P.W. 20, and by this time, the Assistant Commissioner of Police also came to the place. Grave crimes in the City are investigated by the Central Crime Police Station. P.W. 34 was, therefore, instructed to transfer the case to that station for investigation. Accordingly, he went to his own station, and transferred the case to the Central Crime Police Station. On receipt of the papers, P.W. 35, who was then in charge of that station, registered a crime against the first accused at5 A.M. on the same day; and he took up the investigation. He went to the place of occurrence, and conducted an inquest on the dead body of Shivaji, which was commenced at 6.30 A.M. Exhibit P-12 is the inquest report. He also took into custody the material objects found there. P.W. 2, P.W. 3, P.W. 11, P.W. 18 and P.W. 17, the local Manager of Mariakar Motors Ltd. were interviewed, and their statements were recorded by P.W. 35 at the time of the inquest. P.W. 4 P.W. 10 and

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some other witnesses were also interviewed on the same date. The house of the first accused was also searched; but nothing useful for the evidence of (1969) 1 MLJ (Crl) 553 at 558 the offence was found. The dead body was then sent to the Medical College Hospital for examination; which was conducted by P.W. 8, Professor of Forensic Medicine, on the same day. Exhibit P-5 is the post-mortem certificate. P.W. 35 also got a plan, Exhibit P-16 prepared for the scene of occurrence. The first accused surrendered before the Sub-Magistrate's Court, Trivandrum-1 at 3.45 P.M. on 19th September 1966; and he was remanded to judicial custody. On 20th September, 1966, P.W. 35 applied to the Court for remanding the first accused to his custody, for the purpose of questioning him with regard to the weapon used for the commission of the offence. Accordingly, he was entrusted to P.W. 35 at 10 A.M. on 23rd March 1966. He remained in the Police custody till 11 A.M. on the next day, when he was again remanded to judicial custody. When questioned by P.W. 35 about the weapon used for the commission of the offence, the first accused disclosed to P.W. 35 that he had thrown off the knife used for stabbing Shivaji by the side of the tank of the Subramanian Temple. This temple is situate adjacent to the eastern side of the City Improvement Colony Road, which goes due south from the Press Road; and the temple is about 150 feet away from the first accused's house. On the basis of this information, P.W. 35 took the first accused to the premises of the tank to recover the knife. He searched the premises and prepared a mahazar. While he was doing so, information was received that a girl, P.W. 7, aged 17 years, found a knife underneath a shrub nearby the bathing ghat on 20th September 1966, when she went there for bath, and that she picked it up and gave it to P.W. 13, who was then grazing his cattle there. P.W. 35 followed up the information, and went to the house of P.W. 13 along with the first accused. P.W. 13 confirmed the information, and produced before P.W. 35, the knife which he got from P.W. 7, P.W. 35 took the weapon into custody, and prepared a mahazar, Exhibit P-10, regarding its recovery. Rusted marks of blood were noticed on the knife. So it was sent for chemical examination, which disclosed human blood. M.O. 1 is the knife, and Exhibit P-20 is the certificate of chemical analysis. The investigation disclosed, among other things, that, after committing the murder, the first accused went to the house of the 2nd accused, who is a close friend of his, for seeking help and advice. The 2nd accused was sent to fetch P.W. 21, who is another intimate friend of the first accused. P.W. 21 was then the Head Clerk in the office of the Commissioner of Police. Accordingly, P.W. 21 came to the house of the 2nd accused, when it was at about 4 A.M.; and all three of them discussed among themselves as what to do under the circumstances. It was decided against the opinion of P.W. 21 that the first accused would go into hiding for the time being, and he would surrender before Court subsequently. Accordingly, the first accused along with the 2nd accused and P.W. 21, left Trivandrum in a car to a far off place, where the first accused remained in hiding for a day. The first accused was wearing a bloodstained clothe, when P.W. 21 saw him. The first accused got another clothe from the 2nd accused, and gave the bloodstained clothe to the 2nd accused, requesting him that it should be burned off. The 2nd accused entrusted it to his wife, the third accused, asking her to burn it off. On the basis of the above information, P.W. 35 submitted a report in the Court of Sub-Magistrate, Trivandrum-1 in 29th September, 1966,stating that a charge under section 201 , Indian Penal Code has been added in the First Information Report against the 2nd and 3rd accused, and that the investigation was being conducted on that basis. After completing the investigation, P.W. 35 filed a final report in the above Court on 3rd October, 1966, charging the first accused with the offence under section 302 and 201 , Indian Penal Code and the other two accused for the offence under section 201 , Indian Penal Code. The Sub-Magistrate, after a preliminary enquiry, committed all the three accused tothe Court of Sessions for being tried for the above offences. (1969) 1 MLJ (Crl) 553 at 559 In the Court of Sessions, the prosecution examined 35 witnesses, andmarked Exhibits P-1 to 32 and material objects 1 to 17. The accused examined one witness, and marked Exhibits 1 to 5. When examined in the Committal Court, the first accused admitted that Shivaji came to his house at about 2 A.M. on the night following 17th September, 1966, and wanted him to send Vasumathi (P.W. 6) along with Shivaji, and that the first accused told Shivaji that he would not send the girl with Shivaji in the dead of night. He however, denied the rest of the prosecution version of the occurrence. The first accused added that he woke up hearing the sound of somebody breaking open the gate, that the said person came in and knocked at his door, when he put on the light, that then he saw a stranger on the court-yard, who told the first accused that he had come to

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take out a girl, who was staying in the Jaya Lodge, that the first accused told him thatit could not be done, when the stranger called the first accused rascal, and beat him twice, saying that he would be killed, that this person also kicked the first accused on his abdomen, as a result of which the first accused fell down on the veranda, that the said person then sat on the first accused's belly and threatened to stab him with a knife, that the first accused then caught hold of both the hands of the other person, which was followed by a tussle between the two, and that the first accused at last escaped from him and ran away. Exhibit P-28 is the statement which he made in the Committal Court. The first accused gave more or less the same version regarding the occurrence, when he was examined under section 342 , Criminal Procedure Code in the Court of Sessions. He, however, added that, in the tussle which took place between him and the deceased, it appeared to him that the deceased had received an injury, and that the first accused also saw the deceased falling from the veranda to the court-yard. Accused 2 and 3 denied the whole evidence against them in both the Courts below. We shall now notice the injuries received by the deceased, as aresult of the occurrence of that night. Exhibit P-5, the post-mortem certificate shows the following injuries: (1) A stab injury situated over the front of the left half of the chest. The surface wound was spindle shaped, 2.4 1 cm. with clean edges and sharp ends, transverse in disposition and 6 c.m., away from the left nipple in the 10 O'clock position. It had penetrated the sternum at the level of the 3rd intercoastal space; the wound was transverse and measured 2.7 c.m. externally and 2.5 cm. internally with a slight bevelling of the upper edge. The membrane covering the heart showed a transverse cut 2.5 c.m. long and the pericardial cavity contained 200 cc. of dark blood, partly fluid and partly clotted. There was a cut on the front of the right ventricle 2 c.m. long just below the auricle, ventricular grooved and entering the heart chamber. The depth of the stab injury as measured from the surface to the heart was 7.7 c.m. the general direction was backwards, medial and downwards. A stab injury on the left side of the lower half of the back 7 c.m. above the iliac crest. The surface wound was spindle-shaped, 3 c.m.X 1c.m. oblique in disposition with regular edges and sharp ends. It had entered the abdominal cavity but no organ was injured. The track of the wound had a depth of 4.5 c.m. and was directed forwards and medially. Abrasion 3 X cm. on the front of the left knee at the level of the lower b order of the knee-cap. Abrasion X cm. on the left leg 4 c.m. below injury No. 3.

(2)

(3) (4)

P.W. 8 the Professor of Forensic Medicine, who conducted the post-mortem examination deposed, after examining M.O. 1, the knife, that injures Nos. 1 and 2 can be caused by stabbing with M.O. 1 that severe force must have beenused to cause the said injuries, and that the first injury must have caused imme(1969) 1 MLJ (Crl) 553 at 560 diate death of the victim. As noted in Exhibit P-5, the 1st injury has a depth of 7.7 centimetres, and it has pierced through the heart. The first accused has examined one Krishna Pillai, as D.W. 1 to prove his version of the occurrence. P.W. 3 and P.W. 18, who were treated as hostile by the section, also support the first accused. From the statements in the Committal Court and the Sessions Court as well as from the evidence of the above witnesses, the first accused is admittedly responsible for causing the injuries found on the body of Shivaji, which caused his immediate death. From the nature of the injuries and the parts of the body where they were inflicted, it is obvious that the said injuries were inflicted with the intention of causing the death of the victim. The first accused would, therefore, be guilty of the offence of murder, unless the act falls within one or more of five exceptions to section 300 , Indian Penal Code. He has also the right of private defence of the body and of property; and if the act was done in exercise of any such right, subject to the limitations contained in the Indian Penal Code, he would not be guilty of any offence. In fact, the plea of the first accused is private defence of his body as well as of the property. Before considering this plea and the evidence in support of it, it is necessary to notice the extent to which an accused should establish it in a criminal trial. The legal position on this question seems to be well-established. However, it is often raised before Courts; and it has been also raised before us.

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Right of private defence is dealt with in Chapter IV of the Indian Penal Code, which deals with "General Exceptions". Section 105 of the Evidence Act reads as follows:
"105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence is upon him, and the Court shall presume the absence of such circumstances."

Therefore, it is not open to controversy that the burden of proving the existence of circumstances bringing the case within the exercise of private defence is on the accused person. This is an inescapable position of the statutory law. Then it is said that an accused need not plead private defence, and that he is entitled to acquittal, if the evidence raises a reasonable doubt that the alleged act was done in exercise of private defence. If the proposition is stated in that manner, it leads to confusion; and it is apparently contrary to the provision contained in section 105 of the Evidence Act. The true legal position seems to be this. The burden is always on the accused to prove his right of private defence, if his act is sought to be justified on this ground. But section 105 of the Evidence Act does not affect, or detract from, the golden rule of Criminal Jurisprudence that the prosecution must prove beyond reasonable doubt the guilt of the accused. So, if the evidence in the case shows that it is quite probable that the accused did the alleged act in exercise of his right of private defence, it creates a reasonable doubt in the prosecution case. In other words, the prosecution fails in such a state of evidence to establish the guilt of the accused beyond reasonable doubt; and the accused is entitled to acquittal. In a case where an accused is thus entitled to acquittal, it is not relevant whether he has put forward a plea of private defence or has established any such plea. It is unnecessary to refer to a number of decisions on this matter. We think that the following passage appearing in the judgment of Govinda Menon, J. in Neelambaram v. State1states the legal position fairly correctly:
"The right of self defence need not be specifically pleaded. A person taking the plea of the right of private defence is also not required to call evidence on (1969) 1 MLJ (Crl) 553 at 561 his side, but he can establish that plea by reference to the circumstances transpiring from 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."

The learned Judge has again explained the correct legal position in Chandrasekhara Pillai v. Karthikeya1wherein he said:
"Now it cannot be disputed that the burden is on the accused to make out that his case would come under any one of the exceptions. Under section 105 of the Evidence Act when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the Code, is upon him and the Court shall presume the absence of such circumstances. The burden that is cast on the accused in a criminal case by virtue of section 105 , no doubt, is not so onerous as the primary burden cast on the prosecution to prove the offence beyond reasonable doubt. It is sufficient if the accused who pleads an exception satisfies the Court of the probability of what he has been called upon to establish and that if on the evidence it appears probable that the defence set up is true he is entitled to a decision in his favour even though he may not have succeeded in proving the truth of his version beyond reasonable doubt."

The decisions of this Court in State of Kerala v. Madhavan Pillai2,George v. State of Kerala3 and in Narayanan v. State of Kerala4are also to the same effect. Reference may also be made to the decisions of High Court of Patna in Mithu Pandey v. State of Bihar5 and of the High Court of Allahabad in State of U.P. v. Jagdish6 as well as the decision of the Supreme Court in Bhikari v. State of U.P.7These decisions also state the correct legal position. We shall examine the evidence in this case in the light of the above well-settled principles. In doing so, the case pleaded and sought to be established by the first accused through the evidence of P.W. 1 and P.W.'s 3 and 18 may be considered first. The injuries found on the body of deceased Shivaji are two deep penetrating

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stab injuries on vital parts of his body. The medical evidence is that they may be caused by M.O. 1 and that severe force must have been used for causing injury No. 1. In the statement made in the Committal Court, the first accused only said that a tussle took place between him and Shivaji, when Shivaji took out a knife to stab him, and that the first accused escaped from Shivaji's grip and ran away. He does not even mention of any injuries received by Shivaji. In his statement in the Sessions Court, the first accused improved on the above version and added that Shivaji appeared to have received an injury in the course of the tussle. Now, it is impossible that Shivaji could receive two such injuries in the course of any tussle. The injuries speak for themselves, and they can only be the result of deliberate stabbing at the vital pars of the body with the intention of killing the victim. The description of the dead body in Exhibit P-12, the inquest report, shows that even the slippers which the deceased was wearing, were found intact on his feet. The shirt and the baniyan, which he was wearing, were also on the body. Exhibit P-12 does not show any tearing or marks of a tussle on any of the clothes worn by the deceased, except that the dhothi was found by the side of the head of the dead body. The dhothi can fall off without the application of any force or violence, particularly because the (1969) 1 MLJ (Crl) 553 at 562 deceased was at the time of occurrence under influence of alcohol, if not drunk.It is also quite probable that the first accused pulled off the dhothi; while stabbing him. It is also remarkable that the first accused has not even a scratch on his bod)'; and it is impossible that he could escape like that if any tussle took place between him and Shivaji, consequent on Shivaji's attempt to stab the first accused. Thus, the defence version of the occurrence stands self-condemned and belied by the undisputable facts and circumstances of the case. It is not, therefore, strictly necessary to consider the evidence in support of the defence case. However, we shall briefly consider this evidence. D.W. 1 is said to be a retired School Headmaster. He himself has studied only up to the Seventh Standard. He is a friend of the first accused. He comes from Chengannur, a place about seventy miles from Trivandrum. It is said that on the day prior to the occurrence, he came to Trivandrum in connection with his pension matter, and during the following night, he was sleeping in the Capital Annex Lodge. He had visited the first accused in the morning. In the night, he woke up on hearing a commotion from the first accused's house. He went to the southern side of the Lodge and witnessed the whole occurrence, which, according to him, took place in the manner put forward by the first accused. If the occurrence took place in the manner which he says, namely, Shivaji, an unknown stranger to D.W. 1, beat his friend, the first accused, several times, and then kicked him and felled him to the ground, sat upon the first accused's belly, and drew out the knife threatening to stab the first accused, followed by a life and death tussle, D.W. 1 would not have been a silent witness for all these things. He would have at least made a hue and cry, which would have attracted the persons living in that Lodge and in the neighbouring houses, and tried to help his friend. According to D.W. 1, he left the Lodge inly at about 10 A.M. on the following day. The Police was on the scene from 4.00 A.M. onwards, and the inquest report was completed only at 9-30 A.M. If he had actually seen the occurrence, he would have naturally mentioned it to the other inmates of the Lodge, if not to the Police. But he did not do anything like that. The first accused did not submit in the Committal Court a list of witnesses to be examined in the Court of Sessions. He submitted the list in the Sessions Court only on 20th January, 1967, when the last witness for the prosecution was giving evidence. In that list, he did not mention the points for which the witnesses were sought to be examined. It is only after the Court's direction to do so, a statement was filed by the first accused, and D.W. 1 was examined. We have no doubt that D.W. 1 is a witness, who has been hired by the first accused to speak to a false case. The evidence of P.W. 3 and P.W. 18 do not deserve any serious consideration. Apart from the fact that one is the maid servant, and the other is the alleged second wife of the first accused, and that both of them are his dependents, the vers on that they speak to, as we have already noticed, is one which is incapable of acceptance in the light of the indisputable facts and circumstances of the case. There is also the additional fact that these witnesses, when examined by the Police at the time of the investigation of the case, gave a version fully in accord with the prosecution case, and the evidence which they gave before the Court stands completely contradicted by their previous statements. We have, therefore, no hesitation to reject the accused's version of the occurrence as totally false and fabricated. The accused's learned Counsel contended that, whether the defence pleaded by the accused has been established or not, the prosecution can succeed only if it has established the charge against them beyond reasonable doubt. He is perfectly right in that submission. He then submitted that the only witness for the occurrence is P.W. 1, that he is not a witness of truth, and that a conviction cannot be sustained on the

Page 9

evidence of such a witness, particularly because it is (1969) 1 MLJ (Crl) 553 at 563 not corroborated in any material particulars. This submission is not right. In Vadivelu Thevar v. TheState of Madras1the Supreme Court said:
"On a consideration of the relevant authorities and the provisions of theEvidence Act, the following propositions may be safely stated as firmly established: (1) As a general rule, a Court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. (2) Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character. (3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes."

The Court added:

" Section 134 of the Indian Evidence Act, has categorically laid it down that no particular number of witnesses shall, in any case, be required for the proof of any fact." The Legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872 , here have been a number of statutes as set out in Sarkar's 'Law of Evidence-9th Edition, at pages 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in section 134 quoted above. The section enshrines the well recognized maxim that 'Evidence has to be weighed and not counted.' Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are net of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof."

It is true that P.W. 1 is not a man of any status in life. He is only a soda vendor; and that it was also said that he had been convicted for some petty offences. But these are not by themselves sufficient grounds to reject his testimony. His evidence was read over to us completely and commented on by the learned Counsel for the accused. We feel that the version that he has sworn to is consistent with probabilities, and that it is generally a true version of the occurrence. His evidence is also corroborated in several material particulars by other evidence. He lives very near the scene of occurrence; and according to (1969) 1 MLJ (Crl) 553 at 564 him. he came to the Fire Service Station junction on his way home, after finishing his work of vending soda in a nearby Cinema Theatre for the second show, andsettling accounts with his employer. The reason given by him for his presence at that place and time appears quite probable. Then, it was argued that the version that he went along with Shivaji to the first accused's house, and that he waited there till the stabbing took place was quite unnatural. We feel just the other way. It is natural that, a poor man as he is, P.W. 1 did not feel inconvenienced in doing a little service of the kind which Shivaji asked for in that dead of night. The evidence of the witness that Shivaji came to the Fire Service Station Junction, enquired for the house of the first accused, and that he then went in that direction is corroborated by the evidence of P.W. 4 and P.W. 10. His evidence that he returned to the junction after the occurrence, reported the matter to P.W. 4 and others and also to the Police Constables P.W. 19 and P.W. 20 is corroborated by the evidence of these witnesses. The evidence of P.W. 4 and P.W. 10 was attacked by the learned Counsel for the accused, saying that their presence at that time and place was highly improbable, and that they are impecunious persons, who can be hired by the prosecution. Their evidence was also fully read before us. They are persons, who live in the neighbourhood of the scene of occurrence. Their presence at the place seems quite probable. These

Page 10

witnesses were subjected to very lengthy cross-examination, which has only confirmed the veracity of their version given in chief-examination. The fact that the occurrence could happen in the manner in which P.W. 1 deposed, and it is impossible of happening in the manner stated by the first accused is established by the medical evidence, and the manner in which the dead body was found lying at the scene of occurrence. The 1st accused himself has admitted in his statements most of the things deposed by P.W. 1, except his version regarding the occurrence. Above all, Exhibit P-1, the first information statement of P.W. 1 made at the Cantonment Police Station at 3.00 A.M. i.e. within half an hour of the occurrence gives a very detailed version of the whole case; and the evidence that P.W. 1 has given in the Court is completely in accord with that statement. This statement was given apparently before anybody interested in Shivaji came to know about the tragedy. It may also be noticed in this context that Exhibit P-1 does not mention the name of the deceased, nor does it refer even to his profession or employment; and it must be obviously for the reason that P.W. 1 did not then know who Shivaji was. It was seriously contended by the learned Counsel for the accused that Exhibit P-1, though it is timed at 3.00 A.M. is really a document drawn up conveniently much later in the day, after shaping a case of the prosecution's own choice. This is a desperate contention. If we are to accept it, we should disbelieve a number of witnesses without any statable reason, and also documents maintained in the regular course of discharge of official duties. On the basis of Exhibits P-1 and P-21, a case was also registered at 5.00 A.M. at the Central Crime Police Station as per Exhibit P-22. The inquest on the dead body was commenced at 6.30 A.M. It is too much to urge that the investigation of the case was started and action, such as inquest on the dead body, search of premises, etc. was taken without registering a case, or that a case was registered without recording a first information statement. Under these circumstances, we feel no hesitation in accepting the evidence of P.W. 1 as giving a true version of the occurrence. In this case, there is also the additional circumstance, that the prosecution evidence relating to the occurrence falls for consideration only in the light of the admitted fact that the first accused is responsible for causing the death of the deceased, and that the version of the first accused regarding the occurrence is totally false, as we have already found. A large volume of evidence adduced in this case happens to be unnecessary in the light of the plea made by the first accused, and the evidence given by (1969) 1 MLJ (Crl) 553 at 565 him in support of the same. There is only one more item of evidence which supports the prosecution case; and it is the information received from the first accused regarding the knife, M.O. 1, said to have been used for commission of the offence, and the recovery of the said knife on the basis of this information. The learned Sessions Judge has relied on two more facts as corroborating the evidence of P.W. 1, or supporting the prosecution case. One is an extra-judicial confession said to have been made by the first accused to P.W. 21. His evidence does not contain any confession. All that P.W. 21 says is that the first accused told him that the first accused happened to cause the death of a person in his court-yard. This fact is not in dispute; the controversy is only under what circumstances and how it happened. The other fact relied on by the learned Sessions Judge is that the first accused absconded from the place, immediately after the occurrence. This is a very ordinary conduct, even if the first accused was justified in killing Shivaji, in exercise of his right of private defence, which he is pleading. So we shall come to the information received from the accused, which led to the discovery of the knife. We have already noticed that the information received from the first accused took the Police only up to the temple tank, by the side of which the knife was said to have been thrown, and that it is the information received from that place, while the Police was searching here for the knife, which led to its discovery. Under the circumstances, it was contended by the learned Counsel for the accused that the information does not fall within the ambit of Section 27 of the Evidence Act, and that it was, therefore inadmissible. Section 27 of the Evidence Act reads as follows:
"27. How much of information received from accused may be proved.-Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

It appears to us that, on a plain reading of the section, the contention of the learned Counsel cannot be sustained. What is made admissible in evidence by this section is so much of the information received from

Page 11

an accused person by a Police Officer as relates distinctly to any fact discovered in consequence of the said information. The relevancy of the said information and of the fact discovered is governed by other provisions of the Evidence Act. Now in this case, the fact discovered is the knife, M.O. 1; and if it was discovered consequent on any information received from the first accused, so much of the information which distinctly relates to its discovery is admissible in evidence. Whether it was discovered consequent on the said information is mainly a question of fact. The evidence in this case shows that it was the information which the first accused gave to the Police to the effect that he had thrown away the knife by the side of the tank, which caused them to search the premises of the tank. It was during the course of that search that the Police got the further information that the knife had been picked up from that place by P.W. 7, and handed over to P.W. 13. Thus the information received from the first accused led to the discovery of the knife. Section 27 of the Evidence Act is really an exception to section 25 , which enacts that no confession made to a Police Officer shall be proved as against a person accused of any offence. The principle underlying the exception is that, if some relevant fact has been discovered in consequence of an information obtained by the Police from an accused person, some guarantee is afforded by the discovery of the said fact that the information was true, and it can, therefore be safely allowed to be given in evidence. This principle has been satisfied in this case; because the information received from the accused is shown (1969) 1 MLJ (Crl) 553 at 566 to be true by P.W. 7 getting the knife from the place where the accused is said to have thrown it, and by the discovery of the knife from P.W. 13 to whom P.W. 7 gave it. We are supported in this view by the decision of a Division Bench of the Madras High Court In re., Ravupalli Ramamurthy1. In that case, the accused, who was charged with the offence of murder, told the Police that he had thrown the knife used for the commission of the offence at a certain spot. The Police accordingly took the accused to that spot, and made a search for the knife; but it was not found there. Thereupon, the Police Officer made an announcement in the presence of the accused that whoever had picked up the knife from that spot should return it, or he would conduct a search of the houses for its recovery. One person came forward and stated that he had picked up the knife from the very spot, and offered to surrender it to the Police. Accordingly the knife was recovered by the Police Officer in the presence of the accused from the place where that person had kept it. The question arose whether information received by the Police from the accused fell within the ambit of section 27 of he Evidence Act, and was admissible in evidence. The Court said" Section 27 refers to a fact being discovered, and section 3 defines"fact"as meaning and including"anything, state of things, or relation of things capable of being perceived by the senses."It seems to us that these facts were discovered: (1) the fact that a knife had been seen to be thrown away and was later found by P.W. 13 at the spot indicated, and (2) the knife itself. It was the statement of the accused that led the party to the scene and we consider that the subsequent discoveries were directly in consequence of the information received from him. It would be strange if, for example, an accused person stated that the body of a person murdered by him would be found in a certain spot, and on the police going to that spot not finding it there but in a mortuary to which it had by then been removed by, e.g. the village officers, it could be held that the ultimate finding of the body was not in consequence of the information received from the accused."

We respectfully agree with the view and the reasoning contained in the above passage. A Division Bench of the Chief Court of Punjab has also taken the same view in Kapur Singh v. Emperor2.In that case, the accused told the Police that he had thrown two material objects into a canal at a certain spot. When the Police went to that place, information was received that these objects were discovered from that spot by another person, who took them up and gave them to a third person. The Police recovered them from the possession of the last mentioned person. The Court held that the information received from the accused led to the discovery of the material objects, and was admissible in evidence under section 27 of the Evidence Act. Accordingly we hold that the information which P.W. 35 received from the first accused to the effect that he had thrown the knife to the side of the tank of Subramania Temple, and that he could point out the place where it was thrown, and which P.W. 36 has recorded in Exhibit P-11 is admissible in evidence. There is no evidence in the case that M.O. 1 belongs to the first accused or M.O. 1 is the knife which was used for the commission of the offence. When it is beyond controversy that it is the first accused who caused the death of Shivaji, and that it was caused by a knife, the recovery of the knife on the information furnished by the first accused can ordinarily have no significance. But M.O. 1 has some particular features about it,

Page 12

which make its recovery helpful to the prosecution case. From the fact that M.O.1 was discovered on the infor(1969) 1 MLJ (Crl) 553 at 567 mation of the first accused and that it was found stained with human blood, and the medical evidence that injuries Nos. 1 and 2 found on the body of the deceased can be caused by M.O. 1, it can be safely inferred that this was the weapon used for causing the death of Shivaji. Exhibit P-10 contains a description of the knife. It has a length 22 centimetre, including its handle. The blade has a length of 10 centimetres and a width of 2.4 centimetres at the middle. The knife is incapable of folding; and it does not also appear to be one which can be used with a sheath. That means that it is not a weapon which can be carried about conveniently. It is almost inconceivable that a person like Shivaji would carry a weapon like M.O. 1. He was then wearing only a dhothi, and a shirt besides under-wears; and it is not possible to keep such a weapon in any part of his clothes. Therefore, these particular features of the weapon belie the first accused's case that Shivaji drew out a knife threatening to stab him, and corroborate the evidence of P.W. 1 that the first accused got into his house and came out with the knife, with which he stabbed Shivaji. The learned Counsel for the accused contended that no reliance can be placed on the recovery of the knife, and that the whole thing was a Police plot. This contention is devoid of any substance. Nothing has been pointed out by him, which would even suggest that the Police was interested in fabricating a false case against the accused. The evidence of P.W. 7, the young girl who picked up the knife, and of P.W. 13, who got it from her, appears to be quite natural; and there is no reason to disbelieve their evidence. If the knife was planted by the Police, as contended for by the learned Counsel, they need not have introduced witnesses like P.W. 7 and P.W. 13 into the picture. They could have straightaway recovered it, from the place where the first accused was said to have thrown it. It was also contended by the learned Counsel that the information said to have been received from the accused is violative of Article 20(3) of the Constitution, and is, therefore, inadmissible in evidence. There is no presumption that an information received by the Police from an accused person is the result of compulsion. The evidence of P.W.'s 7 and 13 and of P.W. 35 relating to the above information and the recovery of the knife was put to the first accused, when he was examined under section 342 of the Criminal Procedure Code. His case was that the whole thing was false, and not that information was the result of any Police compulsion. The fact that he objected before the Magistrate for his being remanded to Police custody, stating that his presence was not necessary for the recovery of any material objects, does not evidence that any compulsion was used for getting the above information from him. We, therefore, reject this contention. The learned Counsel also made a serious attempt to justify the act of the first accused under section 27 , Indian Penal Code. First he invoked the aid of section 103 , Indian Penal Code, which reads as follows:
"103. The right of private defence of property extends, under the restrictions mentioned in the section 99 , to the voluntary causing of death or of any other harm to the wrong-doer if offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated namely: First-Robbery; Secondly-House-breaking by night; Thirdly-Mischief by fire committed on any building, tent or vessel which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; Fourthly-Theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised."

(1969) 1 MLJ (Crl) 553 at 568 The learned Counsel submitted that there is the evidence of P.W. 8 and P.W. 18, which showed that Shivaji broke open the first accused's gate, and that he alsocommitted the offence of house-breaking by night. It was, therefore, contended that the first accused was justified in voluntarily causing the death of Shivaji in exercise of the right of private defence of property. It is obvious from the facts which we have found that Shivaji did not commit any offence of mischief or criminal trespass, and much less house breaking, by his

Page 13

forcing open the gate of the first accused, and going to his house. Shivaji's only object in doing so was to get the permission of P.W. 3 to take out the girl, Vasumathi along with him. The evidence of P.W. 1 is to the effect that, when Shivaji called from the court-yard of the house, the first accused put on the light, came out to the verandah, offered Shivaji a chair and himself sat on another chair; and both of them talked about that matter. This evidence is corroborated by the fact that two chairs were found on the verandah, on the next day morning, when P.W. 35 made the inquest on the dead body of Shivaji. This has been noticed in Exhibit P-12 the inquest report. P.W. 2, the September student, has also given evidence that he saw both of them seated in two chairs on the verandah and talking to each other. So the plea of private defence of property is absolutely baseless. Then the learned Counsel invoked section 100 , Indian Penal Code and sought to justify the act of the first accused as done in exercise of the right of private defence of his person. This contention is also devoid of any merit, as there was no scope for the exercise of this right, in the light of the finding of the learned Sessions Judge with which we have agreed, that Shivaji did not attack or even make any attempt to attack the first accused. The next question for consideration is what is the offence committed by the first accused in killing Shivaji. We have already held that if it cannot be justified as an act of private defence, he would be guilty of the offence of murder, unless the act falls within one or more of the five exceptions to section 300 , Indian Penal Code. The learned Counsel first attempted to bring the case under Exception 2, which reads as follows:
"Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and caused the death of the person against whom he is exercising such right of the defence without premeditation, and without any intention of doing more harm than is necessary for the purposes of such defence."

This exception has no application, became on the facts found, there was no scope for the exercise of any right of private defence. The learned Counsel then sought to bring the case under Exception 4. It reads as follows:
"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner."

This Exception has also no application to this case; because there was neither any sudden quarrel nor sudden fight between the first accused and Shivaji; and the first accused has also acted in a cruel and unusual manner in stabbing' Shivaji with a fatal weapon at vital parts of his body and causing his death on thespot. The next Exception which falls for consideration is Exception 1; and it reads:
"Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation of causes the death of any other person by mistake or accident."

The question for determination is whether the first accused caused the death ofShivaji, whilst deprived of the power of self-control by grave and sudden provo(1969) 1 MLJ (Crl) 553 at 569 cation. There can be little doubt that the whole conduct of Shivaji on that fateful night was highly objectionable and provocative. The time was past two O'clock in the night. The inmates of the first accused's house must have been fast asleep. The house is in a crowded part of the city, and is surrounded by Lodges, wherein innumerable persons reside. He violently knocked at the tin gate, which must have caused much disturbance in the locality; and finally he forcibly pushed it open, and got into the residential premises. From the courtyard, he again called aloud, and woke up the inmates of the house. Both the first accused and P.W. 3 positively told him that they were not prepared to go to the Jaya Lodge, and send Vasumathi along with him in the dead of that night. But he seemed to have persisted in his extraordinary demand, and finally went out towards the gate, making some threatening or provocative observations. P.W. 3 followed him to the gate, apparently to pacify him; and it was while P.W. 3 and Shivaji were engaged in conversation at the gate, the first accused came out from the house with the knife, and beat Shivaji. Shivaji had consumed alcohol. This is evident from the fact that at the time of the inquest, alcoholic smell was coming out from the body. Exhibit

Page 14

P-6, the certificate of chemical analysis shows that the blood, the contents of the stomach, intestines, liver and kidney of the deceased, as well as the brain contained ethyl alcohol. The whole conduct of Shivaji must have been influenced by drink. The first accused must have been more provoked by Shivaji's persistence with P.W. 3 at the gate; and that must be the reason why the first accused attacked him in the above fashion at the gate. It is obvious that the first accused did not want to do more harm to Shivaji than to get rid of him from the first accused's residential premises. If he wanted to kill Shivaji, the first accused could have stabbed Shivaji at the gate, and thrown him out. But the stabbing took place only subsequently, when Shivaji came back to the verandah, and asked the first accused why he beat Shivaji. It is difficult to visualise that the conduct of Shivaji on this occasion was as peaceful or as harmless as P.W. 1 has deposed. Considering the manner in which the first accused behaved towards Shivaji at the beginning, and the attitude of P.W. 3 in having followed Shivaji upto the gate and trying to pacify him, inspite of his objectionable and provocative conduct, and the manner in which Shivaji was conducting himself in that night, it is highly probable that, after coming back to the verandah, Shivaji must have behaved in such a way as to deprive the first accused of his power of self-control. The conduct of the first accused in inflicting such fatal injuries on Shivaji cannot be understood on any other hypothesis. We are, therefore, inclined to hold that, on the facts and circumstances of the case, Exception I to section 300 , Indian Penal Code, applies to the case. It is also clear from the nature of the injuries, the parts of the body where they were inflicted and the weapon used, that the offence falls under the first part of section 304 , Indian Penal Code. The only question, which now remains for consideration, is the conviction of accused 1 and 2 for the offence under section 201 , Indian Penal Code. The conviction is based on the sole evidence of P.W. 21. He is a person to whom the first accused rushed for help and advice, immediately after the occurrence. If he knew that an offence under section 302 or 304 , Indian Penal Code, was committed by the first accused, he was bound under section 44 of the Criminal Procedure Code, to give information of the same forthwith to nearest Magistrate or Police Officer. But he did not give any such information; and there is no reasonable excuse for his failure to do so. On the other hand, he accompanied accused 1 and 2 in a taxi to Neyyattinkara, and helped the first accused to abscond. What further part he played in helping his friend to escape from the charge depends on his own version. P.W. 21 stood as much chance of being involved in this case as accused 2 and 3. He was at that time the head clerk in (1969) 1 MLJ (Crl) 553 at 570 the office of the Commissioner of Police. His escape from the accused's dock was only a matter of police decision. So it is very unsafe to act upon the sole evidence of a person like P.W. 21, particularly because there is no material to corroborate his evidence in any respect. The information alleged to have been disclosed by the first accused to P.W. 21 and the second accused, as spoken to by P.W. 21, does not show that an offence under section 302 or 304, Indian Penal Code, was committed. All that the first accused told them, according to P.W. 21, was that the first accused happened to stab a person to death and that the dead body was lying on his court-yard. It was quite possible that the first accused also told them that it was done in private defence. At any rate, it is difficult to hold in this state of the evidence, that the 2nd accused knew or had reason to believe that an offence had been committed; and if this is not established, section 201 , Indian Penal Code, is not attracted. There is also absolutely no evidence that any one of the accused caused any evidence of the commission of the offence to disappear. The charge against them was that they caused the bloodstained clothe, alleged to have been worn by the first accused at the time of commission of the occurrence, to be destroyed by setting fire to it, with the intention of screening the offender. The evidence of P.W. 21 goes only to the extent of saying that the first accused handed over the clothe which he was wearing to the 2nd accused, asking him to destroy it by burning, that the 2nd accused entrusted the same to his wife, the 3rd accused, for the said purpose, and that there was then blood on the clothe. Apart from the fact that the evidence of P.W. 21 is unworthy of credit, there is not even formal evidence that the clothe was actually destroyed by any one of the accused. P.W. 35 conducted a search of the house of the 2nd and 3rd accused on 24th September, 1966; and he could not get any evidence of the destruction of the clothe as alleged by the prosecution. The charge against the accused for the offence under section 201 , Indian Penal Code, is totally baseless; and it should not have been made. We are unable to understand how the learned Sessions Judge persuaded himself on the above materials to told that accused 1 and 2 are guilty of the said offence. In the result, we set aside the conviction of the first accused for the offence under section 302 , Indian Penal Code, and the sentence awarded to him by the learned Sessions Judge for the said offence. We hold that the first accused is guilty of the offence of committing culpable homicide not amounting to murder and

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convict him under the first part of section 304 , Indian Penal Code. He is. sentenced to undergo rigorous imprisonment for ten years for the said offence, which, we consider, would meet the ends of justice in the circumstances of the case. The conviction of accused Nos. 1 and 2 for the offence under section 201 , Indian Penal Code, and the sentences awarded to them by the learned Sessions Judge for the said offence are hereby set aside. The 2nd accused is accordingly acquitted. M.C.M.-----Order accordingly.

1 (1960) K.L.T. 387: (1960) MLJ. (Crl.) 281. 1 (1964) K.L.J. 422 2 (1957) K.L.T. 761. 3 (1959) K.L.T. 1101. 4 (1965) K.L.J. 390. 5 A.I.R. 1966 Pat. 464. 6 A.I.R. 1966 All. 244. 7 (1966) MLJ. (Crl.) 561: (1966) 2 S.C.J. 281: (1965) 6 S.C.R. 194: A.I.R. 1966 S.C. 1. 1 (1957) S.C.J. 527: (1957) 2 An.W.R. S.C.) 69: (1957) 2 MLJ. (S.C.) 69: (1957) MLJ. (Crl.) 775: (1957) S.C.R. 981: A.I.R. S.C. 614. 1 A.I.R. 1941 Mad. 290. 2 (1919) 50 I.C. 481: 98 Punj. L.R. 1918.

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