VIJAYAN @ VIJAYA KUMAR versus STATE REP. BY INSPECTOR OF POLICE

Citation: [1999] 2 S.C.R. 89 · Decided: 22-03-1999 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Appeal(s) allowed

Judgment (excerpt)

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VIJAYAN @ VIJA YA KUMAR 
v. 
ST A TE REP. BY INSPECTOR OF POLICE 
MARCH 22, 1999 
[K.T. THOMAS AND D.P. MOHAPATRA JJ.] 
A 
B 
Penal Code, 1860-Sections 300 and 96-Privaie defence-Plea of--
Determination of aggressor-Divergent versions of prosecution and defence 
side about incident-Injuries sustained by accused not satisfactorily 
explained-No reference in the First Information Report about injuries C 
sustained-Defence version that deceased and his party trespassed into the 
accused's house and attacked in retaliation of earlier attack came on official 
record soon after occurrence of the incident when accused told the doctor 
who examined his injuries-Evidence of photographer that he saw blood 
stains in front portion of accused's house and portico-Non-examiriation of D 
place of occurrence by the Investigating Officer even after coming to know 
of such version of the accused-Thus, on facts, defence version appears to be 
more probable-Hence, plea of private defence accepted. 
Evidence Act, 1872-Section 153-Exclusion of evidence to contradict 
answers to question testing veracity-Accused can lead evidence to show E 
that eyewitness was at different place at the time of the occurrence-
Evidence of such type is not aimed at shaking the credit of the witness by 
injuring his character-It affects only the veracity of the testimony-Thus, 
on facts, held that the eyewitness recorded as being present in the inquest 
report is of no consequence. 
F 
Out of the six persons arraigned before the Sessions Court for 
murder of one 'N' the appellant was convicted and rest all were acquitted. 
The trial court denounced the plea of right of private defence of the appellant 
The appellant approached High Court. The High Court rejected the plea of 
right of Private Defence and confirmed the conviction and sentence of G 
imprisonment for life. Hence, this appeal. 
Allowing the appeal, this Court 
HELD 1.1. The judicial imprimatur is given to the plea of right of 
private defence advanced by the appellant and hold him not guilty of the H 
89 
90 
SUPREME COURT REPORTS 
[1999] 2 S.C.R. 
A offence of murder. [98-A] 
1.2. The contention of the respondent that the appellant had exceeded 
his right of private defence is rejected as it is not possible to precisely 
measure the frontier up to which the right of private defence could have been 
B stretched. [97-G-H] 
1.3. The defence version that deceased and his party trespassed into 
the accused's house and attacked in retaliation of earlier attack came on 
official record soon after occurrence of incident when the accused told the 
doctor-prosecution witness who examined his injuries. The appellant would 
c not have had sufficient time to concoct a false story to tell the doctor so soon 
after the incident. More so, when the Investigating Officer came to know of 
such a version of the appellant he should have checked up the house of 
appellant to see whether the said version of the appellant was true. But 
Investigating Officer dicfnot produce any document whatsoever to convince 
D 
the Court that he did make.such examination ofthe_place of occurrence as 
mentioned by the appellant at the earliest. Though he made a bid to say that 
he inspected the house while conducting a search of the same evening it 
cannot be believed for a moment because no search memorandum was made, 
no search-list was drawn up and no witness was collected to be present then, 
Thus, on facts, the defence version seems to be more probable. 
E 
[96-G-H; 97-A-C] 
1.4. The injuries sustained by the appellant were not satisfactorily 
explained by the prosecution. There was no reference in the FIR to the fact 
that the appellant sustained any such in,iury during the incident. While 
giving evidence in the Court, brother of deceased and other prosecution 
F witnesses for the occurrence of the i11cident stated that appellant sustained 
those injuries when second accused aimed to inflict a stab injury on the 
fallen deceased but it miss-struck on the crown of the head of appellant Even 
assuming the second accused would have been a bad striker it is difficult to 
conceive that such an aim fumbling whacking would have landed on the 
G 
crown of another man's head. [97-C-E) 
1.5. It is impossible to ignore the normal human reaction for incident. 
If father of the deceased was slapped then craving for vengeance would 
definitely have been on the injured party of the episode. Thus, the case of 
appellant that deceased and P

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