LexKRISHNAN versus STATE OF TAMIL NADU
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A B KRISHNAN 11. STATE OF TAMIL NADU AUGUST 14, 2006 [G.P. MATHUR AND R.V. RA VEENDRAN, JJ.) Evidence Act, 1872-Section 105-Penal Code, 1860-Sections 96, 302, 304 Part II & 323-Criminal Procedure Code, 1974-Section 313- C Accused charged with murder for hitting deceased on his head with a thorn stick in a quarrel-Plea of self-defence taken by the accused-Trial Court rejected the plea and convicted the accused for murder and sentenced him to life imprisonment-High Court set aside the conviction and convicted him for the offence punishable under section 304 Part fl /PC and sentenced him to undergo RI for 5 years-·Correctness of-Held, on fac1s, evidence of PW D 2 and plausible explanation by the accused in his stateme'lt under section 313 Cr.P.C supports the plea of self-defence pulforth lhe uccused---Hence, accused is acquitted. The case of the prosecution was appellant and deceased elder brother were residing with their families in two adjoining portions with a common E open yard in front of their houses. PW 5, who is the wife of the deceased, covered the sewage drain in the common yard with thorn sticks. Appellant removed the thorn sticks as they came in the way of tethering his bullocks. PW 1, who is the son of the deceasetl, put back the thorn sticks in place but the appellant removed them again. The deceased replaced them. This resulted F in a quarrel between the two families and the appellant took one of the thorn sticks and hit the deceased on his head. When the appellant tried to hit the deceased for the second time, PW I intervened and received the blow causing injury on his right palm. The appellant pushed the deceased who fell down and hit a protruding stone. The appellal!t and his two sons also hit PW I and ran away. The deceased succumbed to his injuries in hospital. G H After investigation, the prosecution framed charges against the appellant. The appellant took the plea of self-defence before the trial court. The trial court rejected the plea and convicted the appellant under section 302 IPC and sentenced him to undergo life imprisonment. The trial court 536 .... - - KRISHNAN v. ST A TE OFT AMIL NADU 537 •. also convicted both the appellant and his first son under section 323 IPC and A sentenced them to 3 months rigorous imprisonment. The appellant and his first son filed a Criminal Appeal before High Court. The High Court set aside the conviction and sentence imposed on the appellant under section 302 IPC and instead convicted for the offence punishable under section 304 Part II IPC and sentenced him to undergo RI for 5 years. The conviction and sentence B of the appellant and his first son under section 323 IPC was confirmed by the High Court. Hence the appeal before the Court. Allowing the appeal, the Court HELD: 1.1. A perusal of cross-examination of PW 1, PW 2, PW 4 and c PW 5 and the statement under section 313 Cr.P.C. clearly shows that the appellant had put forth a plea of self-defence. The onus is on the accused to establish that his action was in exercise of the right of private defence. The plea can be established either by letting in defence evidence or from the prosecution evidence itself, but cannot be based on speculation or mere surmises. The accused need not take the plea explicitly. He can succeed in D his plea ifhe is able to bring out from the evidence of the prosecution witnesses or other evidence that the apparent criminal act was committed by him in exercise of his right of private defence. He should make out circumstances that would have reasonably caused an apprehension in his mind that he would suffer death or grievous hurt if he does not exercise his right of private E defence. There is a clear distinction between the nature of burden that is cast on an accused under section 105 of the Evidence Act, 1872 (read with sections 96 to 106 IPC) to establish a plea of private defence and the burden that is cast on the prosecution under section 101 of the Evidence Act to prove its case. The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond F reasonable doubt, the accused can discharge his onus by establishing a preponderence of probability. [543-A-B-H; 544-A-B-C) Partap v. State ofU.P .. [197611SCC757; Salim Zia v. State of UP, 1197912 SCC 648; Mohinder Pal Jolly v. State of Punjab, [1979) 3 SCC 30; G Sekar v. State, [200218SCC
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