Velayudha Kurup v. State — 1952 DIGILAW 116 (KER)

Judgment :- 1. These three appeals arise from the judgment in Sessions Case No. 13 of 1951 on the file of the Trivandrum Sessions Court. The learned Sessions Judge who tried the case found accused 1, Velayudha Kurup, guilty of causing grievous hurt with a deadly weapon to P.W. 1, Krishna Pillai and he was accordingly sentenced to undergo rigorous imprisonment for a period of 18 months Appeal 23 is against that conviction and sentence Accused 2, Sreedharan Pillai, has been found to have caused the death of P.W. 1's niece, Kunhilekshmi Amma by stabbing her with a pen-knife and also grievous hurt with the same weapon to P.W. 1. In respect of the former offence, namely, murder, he has been sentenced to undergo rigorous imprisonment for life and in respect of the latter to undergo rigorous imprisonment for 18 months. These sentences are to run concurrently. His appeal is Criminal Appeal No 24. The remaining appeal, namely, Criminal Appeal 25, has been preferred by accused 3, Madhavan Nair against his conviction and sentence for causing grievous hurt with a deadly weapon to P. W.1. The sentence against him is the same as that passed against accused 1 and 2 for causing grievous hurt with deadly weapon, namely, rigorous imprisonment for 18 months The charge against these appellants embraced several other counts, but they have been acquitted of these charges. 2. Besides Kunhilekshmi Amma and Pw.1 on the prosecution side Pws. 2,3 and 11 also sustained injuries during the course of the same occurrence. On the defence side all the three appellants sustained severe injuries. The occurrence was at about 11 A M. on 3-6-1123. Kunhilekshmi Amma died the next day [4-6-1123] at 8-45 P. M. Pw.1 sustained as many as 15 injuries and he remained an in-patient in the hospital unable to follow his ordinary avocations till 9-7-1123. Pw. 2 had eight injuries and Pw. 3 five. The former remained in the hospital as an inpatient till 23-6-1123 and the latter till 16-6-1123 Pw. 11 had only two minor injuries and she was not admitted in the hospital as an in-patient. Accused 1 sustained as many as six injuries and accused 2 and 3 eleven each. Each of these accused persons remained in the hospital as in-patients for a period of 27 days and during that period they were unable to follow their ordinary pursuits. Accused 1 sustained as many as six injuries and accused 2 and 3 eleven each. Each of these accused persons remained in the hospital as in-patients for a period of 27 days and during that period they were unable to follow their ordinary pursuits. One noteworthy feature about the injuries inflicted during the occurrence complained of is that all the injuries were of a nature which could have been caused only by sharp instruments. The injuries all except those Pw. 11 sustained were severe in character; some of them were gaping wounds and others punctured or incised ones. There was a counter case against Pws.1 to 3 and that was tried by the learned judge as Sessions Case No. 14. That case however ended in the acquittal of all the three accused persons. 3. The occurrence that gave rise to the two cases arose as a result of the attempt made by the prosecution party here to harvest the crops from a paddy field in Ooralikonath Ela in Aanad Muri, Palode Pakuthy, which together with other items were delivered over to accused 1 and his elder brother pursuant to the decree in O. S. 667 of 1104 on the file of the Nedumangad Munsiff's Court. The delivery was on 28-4-1123 and it is evidenced by the receipt Ex. Y. The said decree was one in redemption against Pw. 1. His father, one Ayyasami Iyer, had executed first a usufructuary mortgage and then a purakadom deed in his [Pw. 1's] favour in respect of the properties comprised in the decree. The mortgage (Ex. I) was in 1099 and the purakadom (Ext. II) in 1101. Some years after these documents came into being Pw. I's mother Kalliani Amma deserted Ayyasami Iyer and left for Singapore with her son by a former husband. Soon afterwards Ayyasami Iyer executed a will bequeathing all his properties to his son Mahadeva Iyer. This served as a prelude for the commencement of a series of litigation which has not seen its end even today. First Kalliani Amma and her eldest son filed a suit to establish that some at least of the properties comprised in the mortgage and purakadom deeds in favour of Pw.1 belonged to their tarwad and not to Ayyasami Iyer. That litigation proved abortive as the plaint returned for presentation before the proper court was not represented afterwards. First Kalliani Amma and her eldest son filed a suit to establish that some at least of the properties comprised in the mortgage and purakadom deeds in favour of Pw.1 belonged to their tarwad and not to Ayyasami Iyer. That litigation proved abortive as the plaint returned for presentation before the proper court was not represented afterwards. Then came the redemption suit against Pw.1 and he fought it to the last ditch, but was badly worsted. He contended that the properties comprised in the two documents belonged to the tarwad and that his father had prevailed upon him to accept the two deeds. When it was found that he could no longer resist redemption his sister Pw. 3 started a new suit but that failed of its purpose. Meanwhile, Ayyasami Iyer had died and Mahadeva Iyer who got himself impleaded in execution proceedings in place of his father assigned the decree to accused 1 and his elder brother. At long last they succeeded in obtaining delivery of the properties in execution and this, as mentioned earlier, was on 28-4-1123 Within a few days of the delivery, to be exact on 21-5-1123 Kunhilekshmi Amma win was none other than the eldest daughter of Pw. 3, instituted a fresh suit in O.S. 95 of 1123 on the file of the Trivandrum District Court for a declaration that the redemption decree in O.S. 667, the two documents on the basis of which that decree was passed and the execution proceedings were all invalid and not binding on her or her children. The plaint stigmatised the delivery evidenced by Ext. Y as mere sham and averred that possession had not passed thereunder to the decree-holders. On that allegation a temporary injunction was applied for to prevent the entry of the decree-holders upon the plaint schedule properties and to restrain further execution. The learned Second Judge before whom the matter came up for orders glibly granted an interim injunction on 25-5-1123. Notice of the order was served on accused 1 on 27-7-1123. 4. While matters remained thus Pw. 3 Kunhilekshmi Amma and sister Bhavani Amma (Pw. 11) together with Pws. 13,17,18 and a Muslim woman went and harvested the crops in Ooralikonath Ela on the morning of 3-6-1123. Prior to the delivery, as ordered by the court pursuant to the representation made by Pw. 1, the decree-holders in 0. 4. While matters remained thus Pw. 3 Kunhilekshmi Amma and sister Bhavani Amma (Pw. 11) together with Pws. 13,17,18 and a Muslim woman went and harvested the crops in Ooralikonath Ela on the morning of 3-6-1123. Prior to the delivery, as ordered by the court pursuant to the representation made by Pw. 1, the decree-holders in 0. S. 667 had paid the cost of seed and labour into court and it was after that the court issued the delivery warrant. Whether Pw. 2 (the husband of Kunhilekshmi Amma) had also joined the aforesaid persons in harvesting the crops is a matter about which there is conflict of evidence. While the crops were being harvested accused 1 to 3 and another person came to the spot and objected that they should not harvest the crops which were delivered over to him together with the property as per. Ex. Y. They paid no heed to the objection and it is said that Pw.1 came to the place at that juncture. His arrival did not improve matters and the prosecution case is that Pw.1 took away PW. 2 from the place lest there should be a breach of the peace. It was left to Pw. 3 and her daughters and the labourers to continue the harvest. Soon after PWs.1 and 2 left, accused 1 again objected and told that in any event the labourers had no business to participate in the harvest. The labourers immediately left the field but Pw. 3, Pw. 11 and Kunhilekshmi Amma persisted in continuing to harvest Immediately accused 1 went to Kunhilekshmi Amma and caught hold of her sickle and the two struggled over it for some time during which Kunhilekshmi Amma sustained some minor injuries on her left hard. While that struggle was going on accused 2 approached them and gave Kunhilekshmi Amma a stab on the left side of her chest. She fell down at once and hearing the cries of Pws. 3 and 11 Pws.1 and 2 returned to the field. The house Pw.1 was occupying was close by. It is during the subsequent occurrence that PWs.1, 2,3 and 11 as also the three accused persons sustained injuries In view of the learned judge's finding that it has not been properly established on the evidence as to who caused the injuries on Pws. The house Pw.1 was occupying was close by. It is during the subsequent occurrence that PWs.1, 2,3 and 11 as also the three accused persons sustained injuries In view of the learned judge's finding that it has not been properly established on the evidence as to who caused the injuries on Pws. 2,3 and 11 it is unnecessary for our present purpose to go into the details of the further occurrence. The learned judge however found that immediately Pws.1 and 2 arrived on the scene all the three accused went against him and when he (Pw. 1) took to flight they pursued him and that accused 1 first and afterwards accused 2 and 3 stabbed him with penknives. As noticed earlier Pw.1 had sustained as many as fifteen injuries. What we have to decide in these appeals is whether the lower court's decision that Pw.1 has been injured by these three accused persons under the circumstances mentioned by the learned judge can be sustained and whether accused 2 has not been proved to have caused the injury which proved fatal to Kunhilekshmi Amma's life. 5. However, before entering into that discussion we have to make the position clear regarding possession. The learned judge has definitely found that pursuant to the delivery effected on 28-4-1113 Pw. 1 was dispossessed and that possession had passed to accused 1 and his elder brother, the assignee-decree-holders in 0.8.667. The attempt of the prosecution to make out that the delivery was mere sham is belied by the evidence of Pw. 7, the court Amin and Pw. 22, one of the attesting witnesses to the delivery receipt Ext. Y, gave in court. The prosecution made no attempt to discredit these witnesses and we have therefore to agree with the lower court's finding that there was real transference of physical possession from Pw.1 to accused 1 and his elder brother. The learned judge has also found that there was no merit whatever in the case that at one stage of the protracted litigations Pw.1 gave up his possession in favour of Pw. 3 and her daughters. The learned judge has also found that there was no merit whatever in the case that at one stage of the protracted litigations Pw.1 gave up his possession in favour of Pw. 3 and her daughters. Even without that finding once it is found that the Amin had gone to the spot and put the decree-holders in physical possession, if persons other than the judgment-debtor claim to be in possession on the date of that delivery, the remedy open to them was to seek redelivery under the provisions enacted in Order XXI, Code of Civil Procedure, or to bring a fresh suit to recover possession. Except in the case of symbolic delivery when a court effects a delivery to a decree-holder or to a court auction purchaser the court really puts such person in physical possession of the property delivered. Its effect is not merely to dispossess the judgment-debtor but also other persons in possession who if aggrieved will have to resort to one or the other remedy referred to. There is no meaning in saying that such delivery is only as against the judgment-debtor alone. He is bound by it once for all, but will also bind others, who claim to have been in possession to the extent that if they want to get back possession they will have to get the delivery proceedings vacated by appropriate means. To a judgment-debtor that relief is not open. Here there is also bo dispute that the prosecution party was not aware of the delivery. The plaint in O.S. 95 of 1123 refers to it. 6. In this view of the matter the prosecution party in this case had no right to harvest the crops from the property in question. They could not even pretend to have done it under cover of the ad interim injunction the court granted at their instance against accused 1 and his brother. When the decree-holders had already obtained possession the subsequent order not to enter upon the property cannot deprive them of their legal possession or right thereto. No doubt if the delivery under which they claim possession turns out to be a mere sham the position would be different. In this case there was transference of physical possession to the decree-holders and the subsequent order not to enter upon the property was therefore destitute of any legal effect. No doubt if the delivery under which they claim possession turns out to be a mere sham the position would be different. In this case there was transference of physical possession to the decree-holders and the subsequent order not to enter upon the property was therefore destitute of any legal effect. The interim order in this case also stated that the decree-holder should not further execute the decree, but on its date execution was already over. The first part of the order not to enter upon the property was futile as the second part not to execute the decree. 7. Our view as to the effect of the order of injunction being what we have stated above we cannot agree with the lower court when it states in its judgment that the injunction order prevented accused 1 or his people from entering upon the property even to prevent the opposite party from taking the harvest. It is unnecessary for the purpose of this case to go further. Nor are we able to see eye to eye with the learned judge when he states that having seen the property in his possession trespassed upon and his crops stolen accused 1 should not have exercised the right of private defence of property to prevent the commission of such crimes. There is no evidence in the case or even any suggestion that accused 1 knew before-hand that under cover of the injunction order the prosecution party would trespass upon the property delivered over and commit theft therefrom Accused 1 went to the property with three companions perhaps after knowing that the prosecution party had started harvesting the crops. He was within his rights to ask them to desist from removing the crops that belonged to him and to withdraw from the field altogether. He was also entitled to use as much force as was needed even to remove the trespassers or thieves from the property. Putting the prosecution case at its best that is all what accused 1 did against Kunhilekshmi Amma. Her own statement (Ex. AN) shows that she insisted on her right to continue the harvest and refused to leave off the sickle which accused 1 tried to remove from her hands. She doggedly resisted the attempt of accused 1 to remove the sickle from her hands with the result her left wrist and palm got injured. Her own statement (Ex. AN) shows that she insisted on her right to continue the harvest and refused to leave off the sickle which accused 1 tried to remove from her hands. She doggedly resisted the attempt of accused 1 to remove the sickle from her hands with the result her left wrist and palm got injured. It was when she was refusing to remove herself from the property or even to be physically removed therefrom that accused 2 went and stabbed her. It cannot be said that it was not to defend the possession accused 1 had over the property. No doubt no circumstances existed to justify the causing of death in the exercise of the right of private defence of property. As to what offence accused 2 should be made liable in case the evidence is believed is a matter to be considered later. At present we are on the question whether there was right of private defence of property. 8. We have said we are in disagreement with the learned judge's view that the defence had no right of private defence. Nor can we agree that this is a case where the defence had time to have recourse to the protection of the public authorities. The learned judge mentions two grounds in support of that view. One is that after having got notice of the injunction on 27-5-1123 accused 1 could have moved for its cancellation. In the light of what we have explained that the order cannot affect him once he had already obtained possession that question does not in our opinion arise at all. No doubt he could have approached the court to have the cloud removed, but he was not bound to do so. Nor was he bound to run to the police station after he saw that the prosecution party had actually started removing his crops. Reference may in this connection be made to the decision in AIR 1980 Lahore 314 and AIR 1934 Allahabad 829. The former case points out that the law does not require that when a person is being wrongfully deprived of property of which he is in possession he should leave the thief alone and run to a tana at a distance to seek redress from the police. The former case points out that the law does not require that when a person is being wrongfully deprived of property of which he is in possession he should leave the thief alone and run to a tana at a distance to seek redress from the police. No doubt that case states that the position would be different if intimation is received in advance of the intentions of the opposite party. The latter case enunciates the same rule as the former It is said there that it is not the intention of sections 97 and 99 of the Penal Code to compel a person having the right of private defence of property to acquiesce in criminal trespass and not to exercise his right of private defence at all. It is further said that such a person need not, instead of protecting his property, run to the police and leave the aggressors to do what the law entitled him to protect himself against by exercising his right of private defence. Para 11 of section 105 of the Penal Code provides that the right of private defence of property commences when a reasonable apprehension of danger to the property commences. It follows that if the act of trespass and theft in this case had already begun when accused I and his companions went to the property there was more than apprehension of danger to property and the right of private defence had come into existence. When the right had commenced it is not expected that a person entitled to exercise it should have recourse to the protection of public authorities. Paragraph 2 of section 105 shows that the right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. Paragraph 4 says that the right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. 9. Now we have to examine the evidence against accused 2 to find out whether his guilt has been established and if so, of what offence. The lower court has relied upon the evidence of Pws. 3,11 and 13 to prove this part of the case. So far as Pws. 9. Now we have to examine the evidence against accused 2 to find out whether his guilt has been established and if so, of what offence. The lower court has relied upon the evidence of Pws. 3,11 and 13 to prove this part of the case. So far as Pws. 3 and 11 are concerned their earlier statements (Exts. A and H) fully corroborate their evidence in court with regard to the act of accused 2 against Kunhilekshmi Amma. The evidence of Pw.12 is also in conformity with the evidence of the three witnesses mentioned that the first act of real physical aggression started with Accused 2 in inflicting a stab wound on Kunhilekshmi Amma in the region of her left chest. The first information statement she gave to the police (Ext AN) which in view of her death forms substantive evidence also shows that Accused 2 inflicted a stab on her when accused 1 was struggling with her to gain possession of the sickle. The other injuries on her person have been explained by her as having been caused during the course of the struggle Accused 1 had with her over the sickle. The nature of these injuries go to show that that statement of her is true. The wound caused by the stab accused 2 gave her cut through the sixth inter costal space for three inches. It cut also through the diaphragm and stomach. The medical evidence gives no room for doubt that her death was the direct result of that wound. The lower court has accepted fully the prosecution case in these aspects. We see no reason to come to a different conclusion on these questions and accordingly hold that Kunhilekshmi Amma died as a result of the injury she sustained at the hands of accused 2. 10. In dealing with the question of self defence, on the assumption that the evidence against accused 2 was worthy of credence we said earlier that there were no circumstances to justify the causing of death. He had only the right to remove her from the property and to desist her from committing theft of the crops belonging to accused 1. In so doing he could have caused her any harm other than death. He had only the right to remove her from the property and to desist her from committing theft of the crops belonging to accused 1. In so doing he could have caused her any harm other than death. The right of private defence of property being found it has to be considered whether it was exercised in such a manner as would enable us to say that it was not misused. We are unable to take the view that the exercise of the right was not made in good faith or that death was caused with pre-meditation or with the intention of doing more harm than was necessary for the purpose of the defence. At that moment he cannot be expected to judge his act by the cool standard of a by-stander. It was while the struggle between accused 1 and Kunhilekshmi Amma had gone on for some time that accused 2 inflicted the stab. It may well be that it struck a vulnerable part of the body because the body itself was moving during the course of the struggle We therefore think that the offence accused 2 can be found guilty of is only one of culpable homicide not amounting to murder falling within the second part of the section 304 Penal Code. He might at best have had the knowledge that his act was likely to cause death but the act would seem to have been done without any intention to cause death or to cause such bodily injury as was likely to cause death. We will come to the question of sentence after dealing with the case of himself and the other two accused for having inflicted grievous hurt on P.W.1 with deadly weapons. 11. Apart from the evidence of the eye-witnesses referred to in the preceding paragraph the lower court relies upon the evidence of P.W. 16 also to sustain the charge under Section 326 against the three accused persons. The court however found even his evidence was not of much use to decide who among those three were the culprits in inflicting injuries on P.Ws. 2 and 3. We have carefully examined the evidence of P.W. 16, and that witness does not at all impress us as a witness of truth. In his evidence before the committing Magistrate in the counter case (Ext. 2 and 3. We have carefully examined the evidence of P.W. 16, and that witness does not at all impress us as a witness of truth. In his evidence before the committing Magistrate in the counter case (Ext. XXIII) he had said that by the time he came to the scene P.Ws.1 and 2 in that case (Accused 1 and 2 here) had already been injured. The entire evidence of the prosecution as to the occurrence is to the effect that they sustained injuries after all the five victims on the prosecution side were injured if by the time P.W. 16 came to the scene accused 1 and 2 had already sustained injuries it is not known how he could have seen the earlier part of the occurrence. In Ext XXIII he has said that he did not see these two accused persons being injured. Again in his evidence before the committing Magistrate in this case he has said that as soon as P. W.1 and 2 came to the scene hearing the cries of P. Ws. 3 and 11 there was a scuffle between the opposing parties. He now gives the go-by to that version and it requires very little imagination to show that it is not an innocent departure from his former statement. "The lower court distinguished the prosecution case regarding the infliction of injuries on P.W.1 from that regarding the infliction of injuries on P.Ws. 2 and 3 on the ground that P.W.1 had been pursued by the accused persons along the varamba and that the infliction of injuries on him was a separate act in itself distinct from the earlier part of the case when Kunhilekshmi Amma was injured and also distinct from the latter part when P. Ws. 2 and 3 were injured. Curiously enough his earlier depositions, Exts. XXIII and XXIV as also the earlier records in the case, Exts. A, L, N and AN are conspicuous by the absence of any reference having taken place on the spot now mentioned. No doubt the Sub-Inspector of Police who went to the spot before the injured person on the prosecution side were removed from the scene of occurrence saw P. W.1 lying down at the place where the prosecution now states was the place at which he was injured. No doubt the Sub-Inspector of Police who went to the spot before the injured person on the prosecution side were removed from the scene of occurrence saw P. W.1 lying down at the place where the prosecution now states was the place at which he was injured. But even Kunhilekshmi Amma who was injured while she was in the paddy field was seen lying alongside the other victims on the reclaimed area when the Inspector went there. In the circumstances we cannot place any reliance on the evidence of P. W. 16 or on the present prosecution case that the infliction of injuries on P. W.1 was an isolated act in itself. When stripped of these developments there is nothing to distinguish the case of the infliction of injuries on P.W.1 from that relating to the infliction of injuries on P.Ws. 2 and 3. The learned judge thought that P. Ws. 2 and 3 must have been injured in a free fight and it was not possible on the evidence to find who were responsible for those injuries. A parent weakness of the prosecution case is that even though Accused 1 to 3 have also been severely injured and they also sustained grievous hurt with deadly weapons there is no explanation worth the name as to how, when or who inflicted those injuries. There is the belated explanation that P. W. 3 had cut them with her sickle; the injuries however belie that explanation. Among the injuries on these persons there were also injuries which a sickle could not produce. In the circumstances we are unable to agree with the lower court that the infliction of the injuries on P.W.1 stands on a footing different from that relating to the infliction of injuries on P. Ws. 2 and 3. The probabilities are that the free fight-if there was one-should have started immediately P. Ws.1 and 2 returned to the scene of occurrence hearing the cries of P. Ws. 3 and 11 when Kunhilekshmi Amma was wounded. That no doubt is a mere speculation but the lower court indulged in such a speculation with respect to the infliction of injuries on P.Ws. 2 and 3. There is some support for the present speculation in the evidence of P. W.16 itself. 3 and 11 when Kunhilekshmi Amma was wounded. That no doubt is a mere speculation but the lower court indulged in such a speculation with respect to the infliction of injuries on P.Ws. 2 and 3. There is some support for the present speculation in the evidence of P. W.16 itself. It is no doubt convenient for a prosecution to say that in such an occurrence as the present one the victims were injured one by one or one after another and not in a confused fight, but it requires a good deal of persuasion for a court to accept such a case. The lower court itself did not accept the prosecution case in its entirety. As mentioned already we are unable to distinguish the case relating to the infliction of injuries on P. W.1 from that relating to the infliction of injuries on P. Ws. 2 and 3. To those who committed theft of the crops or to those who came to aid them. Accused 1 and his companions were entitled to cause any harm other than death. On the whole in our view the prosecution evidence is insufficient to sustain the case against the three persons under section 326 of the Penal Code The result is that the lower court's conviction of the three accused persons for causing grievous hurt with deadly weapons on Pw.1 must be set aside. Criminal Appeals 23 and 25 are therefore allowed. Criminal Appeal 24 is also allowed so far as it relates to the conviction under section 326. As for the conviction of the appellant therein (Accused 2) for murder we have already held that the offence would fall only under the latter part of section 304. We acquit accused 2 of murder and convict him under the second part of section 304 and sentence him to undergo rigorous imprisonment for a period of 7 years. Order accordingly. Allowed.