DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

CRIMINAL LAW- I
CASE COMMENT
ON

KRISHNAN V. STATE OF TAMIL NADU

Submitted By:

Under the Guidance of :

VIJAY PRAKASH YADAV

MR. K. A. PANDAY

ROLL NO. - 152 (B)

ASSTT.PROFESSOR (LAW)

INTRODUCTION
TITLE- Krishnan v. State of Tamil Nadu (AIR 2006 SC 3037)
JUDGE BENCH- Division Bench, Justice G.P. Mathur and Justice R.V. Raveendran.
MAORITY/MINORITY - The Judgement in the present case is unanimous judgement.

Self- defence is the basic human instinct and is duly recognized by the criminal jurisprudence
of all civilized countries. All free, democratic and civilized countries recognize the right of
private defence within certain reasonable limits. In the present case there is appeal against the
judgement of Madras High Court for rejecting plea of Private Defence.
It is the first duty of man to help himself and it is the primary duty of the state to protect the
life and property of the individuals, but no state, no matter how large its resources, can afford
to depute a policeman to dog the steps of every crime or wrong in the country. Consequently
this right has been given by the state to every citizen of the country to take law into his own
hand for their safety. One thing should be clear that, there is no right of private defence when
there is time to have recourse to the protection of police authorities. This Right solely
depends on the wrongful or apparently wrongful character of the act attempted, if the
apprehension is real and reasonable.
Section 96 to 106 of the Indian Penal Code states the law relating to the right of private
defence of person and property. The provisions contained in these sections give authority to a
man to use necessary force against an assailant or wrong-doer for the purpose of protecting
ones own body and property as also anothers body and property when immediate aid from
the state machinery is not available and in so doing he is not answerable in law for his deeds.

FACTS
The appellant (Krishnan) and his elder brother Rathina Gounder were residing with their
respective families in two adjoining portions, with a common open yard in front of their
houses. The appellant used to tether his bullocks in the common yard. There was also an open
sewage drain in the common yard. To prevent pigs coming to the drain and causing nuisance,
Rathina Gounder's wife Kasiammal covered the said drain with thorn sticks on or about 5th
or 6th of June, 1997. The appellant removed the thorn sticks as they came in the way of
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tethering his bullocks. There was a simmering discord for about 3 days about the thorn
fencing of the drain between the families of the two brothers, that is, Rathina Gounder, his
wife Kasiammal and his son Elumalai on the one hand, and appellant (Krishnan) and his two
sons Samivel and Sekar on the other.
On 9.6.1997 at about 5 p.m., the appellant removed the thorn sticks which had been placed by
Kasiammal. Elumalai put back the thorn sticks in place. At about 8 p.m., the appellant again
removed the thorn sticks and tethered his bullocks. The action of Rathina Gounder placing
the thorn sticks over the drain and the appellant removing them went on for a while and a
quarrel developed. Both the party tried to hit each other by the thorn stick lying on the
ground. According to the prosecution, when the appellant tried to hit Rathina Gounder with
the thorn stick for a second time, his son Elumalai tried to intervene and received the blow
causing injury to his right palm. Thereafter the appellant pushed Rathina Gounder who fell
down and a protruding stone pierced near the arm-pit. The appellant again hit Elumalai on his
forehead with the thorn stick. Thereafter, appellant and his two sons ran away. Elumalai
collected the thorn stick dropped by the appellant and kept it.
Rathina Gounder was taken to Government Hospital. Dr. Bhaskaran (PW-3) examined him
and referred him for further treatment to Cuddalore Government Hospital. However,
Kasiammal and others took Rathina Gounder to Jipmer Hospital, Pondicherry where Rathina
Gounder succumbed to his injuries on 12.6.1987 at about 12.45 p.m. Elumalai also got
himself examined at Government Hospital. When he was in the said hospital, on 10.6.1997 at
about 6.00 A.M., the Sub-Inspector of Police attached to Arakandanathur Police Station came
and enquired about the incident and recorded his complaint.
TRIAL IN SESSION COURT
The prosecution examined 13 witnesses. Elumalai (PW-1), Thangaraj (PW-2), Pitchaimuthu
(PW-4) and Kasiammal (PW-5) were the eye-witnesses. Elumalai, son of the deceased was an
injured eye-witness. Kasiammal was the widow of the deceased, Thangaraj was the nephew
of both Rathina Gounder and the appellant, and Pitchaimuthu were neighbours. All the four
eye-witnesses narrated the incident broadly in accordance with the prosecution case. They
also stated that as there was a street-light nearby they could see what happened clearly. M.
Subramaniam Pillai (PW-9) was the Panchayat President who had switched on the street light
opposite Rathina Gounder's house, which had lit up the area when the incident took place. Dr.
Bhaskaran (PW-3) had examined the deceased and his son Elumalai for their injuries at
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Thirukovilur Government Hospital and issued the injury certificates. Atul Murari (PW-6),
Associate Professor of Forensic Medicine, Jipmer Hospital, Pondichery, conducted the postmortem on the body of the deceased. Both doctors opined that death occurred on account of
the head injury.
The trial court found that the evidence of the four eye-witnesses (PWs.1, 2, 4 and 5) clearly
established that the appellant hit Rathina Gounder on the head with the thorn stick during his
quarrel with Rathina Gounder. The trial court rejected the case of self-defence put forth by
the appellant for the following reasons:
a) There was no evidence to show that the appellant was injured during the incident.
b) The appellant did not state in his statement under Section 313 IPC, that he hit Rathina
Gounder in self defence, to avoid danger to his life.
c) The appellant did not establish that he gave a complaint to Arakandanallur Police Station in
regard to the attack by Rathina Gounder and Elumalai, as no such complaint was recorded in
the said Police Station.
The trial court further held that the appellant had acted with the intention of causing bodily
injury to Rathina Gounder and such bodily injury inflicted by him being sufficient in the
ordinary course of nature to cause death, he was guilty of culpable homicide amounting to
murder under Section 300 (Thirdly) of IPC. Consequently, the appellant was convicted under
Section 302 IPC.
DECISION OF THE HIGH COURT
The High Court affirmed the finding that Rathina Gounder died as a result of the head injury
caused by the Appellant, by hitting him on the head with the thorn stick. It also held that the
evidence of PWs.-1, 2, 4 and 5,stated that the appellant suddenly picked up the thorn stick
lying nearby during a quarrel and hit the deceased as also the fact that the appellant did not
come to the place of occurrence with any weapon, established that there was no predetermined or premeditated plan or intention on the part of the appellant to cause the death of
the deceased or cause any bodily injury as is likely to cause death; and that the appellant had
hit the deceased with the knowledge that his act of hitting the deceased on his head was likely
to cause death. The High Court was of the view that the thorn stick used was not a dangerous

weapon. Consequently, it held that the appellant had to be convicted under Section 304 Part
II, IPC and not Section 302 IPC and sentenced him to five years rigorous imprisonment.
FINDING OF THE SUPREME COURT
As learned Counsel for the appellant submitted that the High Court did not consider the plea
of self-defence though specifically raised. The Supreme Court found that the entire
Memorandum of Appeal before the High Court concentrated and revolved upon the plea of
self-defence. The grounds referred to the evidence of PW-2 Thangaraj and the several
circumstances, which the appellant relied on to make out a case of self defence.
Supreme Court found that a perusal of the cross-examination of PWs-1, 2, 4, and 5 and the
statement under Section 313 clearly shows that the appellant had put forth the following pleas
of self-defence.
That Rathina Gounder and his wife and son were jealous of the appellant as he was
maintaining bullocks therefore, they were trying to obstruct the tethering of his bullocks in
the common yard by putting thorn sticks in that place. There was no drain in the common
yard and therefore, the question of covering any drain by thorn sticks did not arise. Rathina
Gounder and his son Elumalai were threatening that they will assault him and kill him. On
the date of incident, Rathina Gounder and his family had thrown thorny sticks next to the
bullocks tethered by the appellant, the said thorns were pricking the cattle and made it
difficult for the cattle to lie down, and therefore, he went and removed the thorn sticks. At
that time, Elumalai (PW-1) came and held his neck and Rathina Gounder came and held his
hair locks. When he tried to release himself, Rathina Gounder bit him next to the right thumb
and blood started oozing out. Rathina Gounder and Elumalai also took a stick each and
slashed towards his head and he raised his hands to cover his head, and that the blows fell on
both his elbows resulting in lacerated wounds. The appellant also stated that fearing for his
life, he ran away and went to the Arakandanallur Police Station around 12 O'clock mid night
and explained what happened and showed his wounds. The Sub-Inspector asked him to give a
complaint and he got a complaint written and gave it.

ISSUES INVOLVE
1. Whether the fact that the accused in his statement under section 313 of CrPC only
referred to the acts of the deceased and his son hitting him and did not admit that he
hit back the deceased, is a ground to reject the plea of private defence or not?
2. How far an accused should plead the plea of self defence to get the benefit of the
same?
THE LAW OF THE POINT
SECTION-105. Burden of proving that case of accused comes within exception.-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, (45 of
1860), 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.
DECISION OF THE COURT
1. The plea of the accused, when read with the evidence of the eye-witnesses, brings out
a set of facts and circumstances showing that the accused acted in exercise of the right
of private defence, the fact that the accused in his 313 statement only referred to the
acts of the deceased and his son hitting him and did not admit that he hit back the
deceased, is not a ground to reject the plea of private defence.
2. It is now well-settled that 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 his plea if he 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 defence.

PRINCIPAL OF THE LAW (RATIO)

There is a clear distinction between the nature of burden that is cast on an accused under
Section 105 of the Evidence Act (read with Sections 96 to 106 of Indian Penal Code) 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 a reasonable doubt, the accused can discharge his onus by establishing a
preponderance of probability.

COMMENT ON THE JUDGEMENT

The judgment of the Supreme Court in this case is worthy to appreciate. Though in this
judgement there is no new observation related to private defence made by the court still the
judgement is important in its whole. The important thing in this judgement is close
examination of the statement of the various eye witnesses especially the statement of the
witness in cross- examination. To reach on the decision the Judges relied on the statement of
the PW-2 and PW-4 in their cross examination mainly PW-2. The reason is that the way in
which they gave their statement in the examination-in-chief and in the cross-examination
shows that they were free from any kind of biasness towards one of the party. Their
statements are balancing in nature as contrary to that statement of the PW-1 and PW-5.
Though SC in its various judgment held that the statement given by the near blood relative
eye witnesses is of that same value as other eye witnesses but in this judgment SC indirectly
reject the statement of PW-1and PW-5 who are the son and wife of the deceased respectively
and gave the more importance to the statement of the PW-2 and PW-4 who are the cousin and
neighbour of the both family respectively.
The PW-2 Thangraj in his examination in chief gave the statement according to the
prosecution fact but in his cross-examination he gave the statement which is more or less
contrary to his statement-in-examination in chief and supports the plea of private defence as
raised by the appellant. And second aspect that he was not sought to be declared hostile. That
is why Supreme Court observed him as partisan witness. Keeping in both the thing in the
mind Judges relied on statement given by the PW-2 and considered it as a base statement.
After this SC observed statement of other eyewitnesses on the basis of the statement of the
PW-2. And at last SC found that other circumstantial evidences and statement of the eye

witnesses more or less supports the statement of the PW-2 and plea of self defence and finally
the version of preponderance of probabilities in the favour of self defence.
For rejection of the reason given by the trial court of not giving the benefit of private defence
to the accused, SC mainly relied on the principles of the IPC and evolved from the case laws.
For instance the first reason of the Trial Court is that There was no evidence to show that the
appellant was injured during the incident is rebutted by the principle that the accused need
not to prove the plea of self defence with help of evidences and eye witnesses produce on his
part, it can be pleaded with the help of evidences produced by the prosecution. Unexplained
injuries of the accused are a strong basis for concluding that he might be acted in the exercise
of right to private defence and if all these kinds of evidences are there then the Court can
itself take the cognizance of self defence. The other two reasons given by the trial court are
not so strong that they nullify or mitigate the plea of self defence as observed by the Supreme
Court.
For proving the case of self defence the appellant relied on the evidences produced by the
prosecution itself. It is also worthy to appreciate that court observed the statement of eye
witnesses closely and went through all the events which occurred in the incident. Court
examined that what are the root cause of incident and also examined that whether these
causes are true or not. Supreme Court tried to find out which party initiated the dispute first
or which party had malafied intention in this case. With the help of these questions Supreme
Court tried to justify the decision and held the plea of self defence in favour of appellant.
If we see the Judgement, we find that Supreme Court only observed the provisions of IPC to
reach the decision. For getting the benefit of self-defence an accused should prove that there
is a reasonable apprehension of an imminent danger of life or grave bodily injury. Now if we
see the fact that the dispute was started by the deceased family and at the time of scuffle,
deceased bit the appellant and then took one of the thorn stick and attacked the appellant on
his head, this is sufficient to prove reasonable apprehension of imminent danger of life or
grave bodily injury and if any prudent man would have been caught in this situation, he
would have tried to protect himself by attacking the assailant; and appellant did the same
thing. So it would be grave injustice to him if he is not provided the right to self-defence.
So after analysis it can be easily said that whatever the issue and law involved in this case
are, they are not of such a kind that they need the interpretation of such a higher authority. As
plea of private defence was raised by the counsel in the High Court and if the High court
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would have considered the statement of PW-2 in cross-examination in the light of self
defence, the appellant would have got the benefit of right to self-defence in the High Court
itself.

CONCLUSION
The right of self-defence is basic to any society. Even the UN has recognized its importance
as a universal human right. The act done in the self defence should be shown to be defensive
and not offensive and there must be no flavour of revenge or retaliation in it. The statuary
provision given under the IPC and other codes seem to be most suited to the Indian
circumstances and clearly drafted. Nonetheless this statuary right has received new meaning
and new principle by the interpretation of the judiciary.
Some latest interpretation is given to this right in the case of Darshan Singh v. State of
Punjab (AIR 2010 SC 1212). In this case, Supreme Court laid down a new principal or reinterpret the old one that Right to private defence could even extend to causing death if there
is real apprehension that aggressor might cause death or grievous hurt. Though the courts
have always consistently held that the right of private defence extends to the killing of the
aggressor where there is a reasonable and imminent apprehension of the grievous hurt or
death. But in this case the Courts used the word real apprehension and it can be interpreted
in many ways. Though the term reasonable apprehension is given under the IPC, it has a
clear and unambiguous meaning. Terms like real apprehension and serious apprehension
are vague and who would decide what is real or what serious apprehension is. So this kind of
wording only leads to confusion in the name of new approach.
Another important principal laid in the same case is that It is unrealistic to expect a person
under assault to modulate his defence step by step with any arithmetical exactitude and this
principle is important for expanding the meaning and application of the IPC clause inflicting
of no more harm than it is necessary to inflict the purpose of defence and suggest the
meaning that a person can use extra force to avert the danger.