The State of Karnataka v. Shivashankar — 1978 DIGILAW 16 (MAD)

Honniah, Actg. C.J.-The accused-Shivashankar, who was a student of first year B.A. in D. Banumaiah’s College, was charged with having committed the murder of one Channegowda, who was also a student of the same institution. 2. The case of the prosecution was that Vittaldas (P.W. 18), who was a lecturer in the said college, was teaching economics to the students of ‘A’ section of the first year B.A. The accused and Channegowda were students in the same class. In the month of January, 1976, Vittaldas nominated Channegowda as the representative of the class. This was resented to by the accused. Vittaldas reconciled both the accused and Channegowda and thereafter no untoward incident happened. On 4th March, 1976, Bhaskar Rao (P.W. 21) another lecturer conducted practical class from 8 a.m. to 10 a.m. where, many students participated. Bhaskar Rao had drawn an India map on the board for the students in order to teach the subject of enlargement and reduction and by 10.30 a.m. he left the class. It appears that even after Bhaskar Rao left the class, Channegowda was copying what had been written on the board. The accused came between the board and Channegowda obstructing the view. Channegowda appears to have taken objection to that and dragged the accused aside. The accused threatened Channegowda saying that he would stab him. Having said so, he went away. On the morning of 5th March, 1976, Channegowda along with Venkatesh (P.W. 12), Manchaiah (P.W. 13), Basavaraj (P. W. 15) and Veerabhadragowda (P. W. 16) went to a hotel near the College and had their breakfast there. They came to the college by about 10 or 10.15 a.m. The accused also came there to go to his class. According to the prosecution, on seeing Channegowda, the accused slapped him stating why he had behaved rudely with him on the previous day. Channegowda in turn slapped him and there was a fight between them. During the course of the fight, according to the prosecution, the accused took out a dagger (M.O. 3) from his pocket stabbed Channegowda on the chest and ran away. Channegowda fell down with bleeding injury and while he was being removed to the hospital, he died. 3. The main case set up on behalf of the accused at the trial was self-defence and the trial Judge addressed himself to this question and held that- ". . . . . . Channegowda fell down with bleeding injury and while he was being removed to the hospital, he died. 3. The main case set up on behalf of the accused at the trial was self-defence and the trial Judge addressed himself to this question and held that- ". . . . . . . .. . . . . . . It would, therefore, necessarily follow that some force must have been used on the accused during the course of the incident, as to tear the pocket of his shirt and rip off the buttons from the said shirt. This circumstance would also, to some extent, go to probabilise the defence version that it is the deceased and his associates, who had first assaulted the accused." In the concluding paragraph of his judgment, he pointed out that-". . . . . . . . . . . . . . . . . . . it is difficult to hold that the prosecution has affirmatively and conclusively established that the incident took place in the manner alleged by the prosecution and that the accused was the aggressor, who had intentionally and deliberately stabbed the deceased with the dagger M.O. 3................" In this view, he acquitted the accused. Aggrieved by this decision, the State has preferred this appeal. 4. Regarding the incident that happened on 4th March, 1976, the only witness who has been put forward by the prosecution is Manchaiah (P.W. 13). His evidence is that after the classes were over, the accused asked Channegowda to give him the scale, for which, he refused to hand over. When the accused stood between the board and Channegowda, Channegowda objected and dragged him aside. Then, according to him (P.W. 13), the accused threatened to stab Channegowda Bhaskar Rao (P. W. 21) who taught the students that morning till 10 a.m. does not say that these three students had attended the class. On the other hand, in cross-examination P.W. 21 has stated that the accused did not belong to that batch at all. It is therefore clear that the incident of 4th March, 1976 as spoken to by P.W. 13 is rather hard to believe. 5. On the other hand, in cross-examination P.W. 21 has stated that the accused did not belong to that batch at all. It is therefore clear that the incident of 4th March, 1976 as spoken to by P.W. 13 is rather hard to believe. 5. As to what happened in front of the College on the morning of 5th March, 1976 has been spoken to by Venkatesh (P.W. 12), Manchaiah (P.W. 13), Manjappa (P.W. 14), Basavaraj (P. W. 15), Veerabhadragowda (P.W. 16) and Rajasekhar (P.W. 17), who were all students. Of these witnesses, P.Ws. 15, 16 and 17 have not supported the case of the prosecution. Their evidence, in substance, is that there was a fight between the accused and the deceased and that a number of people had gathered around them and they do not know the details of the incident. Their evidence further shows that the deceased and the accused held each other and fought and in that process the shirt of the accused was torn. Of these three witnesses, Rajasekhar’s (P.W. 17) version is that some of the persons who were in that group had weapons in their hands. The remaining witnesses have supported the case of the prosecution. According to them, the accused had picked up a quarrel with Channegowda by slapping him and Channegowda in turn slapped the accused and there was a fight between them and during the course of the fight, the accused took out M.O. 3 and stabbed Channegowda and ran away from the place. The evidence of these witnesses establishes beyond doubt that Channegowda was in the company of his group and later on they were joined by some others. But all these witnesses are positive in their statement that the accused came alone near the college. If this circumstance along with the admission made by P.W. 17 is taken into consideration, it is clear that Channegowda and others who were in his company had some ulterior motive when they came to the College. Although these witnesses have stated that the accused was the man who started attacking Channegowda, it is clear from the circumstances available in the case that Channegowda and his friends must have, in all probability, attacked the accused. If in those circumstances the accused exercised his right of self-defence, it cannot be said that he had no such right or that he exceeded that right. 6. If in those circumstances the accused exercised his right of self-defence, it cannot be said that he had no such right or that he exceeded that right. 6. The State Public Prosecutor, however, contended that the accused in his statement under section 313 of the Criminal Procedure Code has not set up the self-defence theory and therefore, it is presumptuous to make out a case of self-defence when he did not plead for himself. 7. No doubt even if the accused did not plead for self-defence, it is open to the Court to consider such plea if the prosecution evidence would support it. In this case, it is true that the accused in his statement under section 313, Criminal Procedure Code did not take the plea of self-defence; but necessary basis for that plea was led in the cross-examination of the prosecution witnesses. The burden of establishing that plea, no doubt, is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the materials on record. If we examine the background of this case leading to the incident, it is quite clear that Channegowda and others, who had accompanied him that morning’ up to the place of incident, had something up their sleeves. As soon as the accused came near the college, the fight started between Channegowda and the accused. Why, the fight started, it is difficult to postulate in this case. It may be that the incident that happened on the morning of 4th March, 1976 had provoked Channegowda and his friends to deal with the accused in that fashion. At any rate, there is no evidence that the accused himself had any pre-planned idea of attacking Channegowda. If that would be so, he would not have selected the College premises to attack Channegowda when he (Channegowda) was in the company of his friends, of whom, one or two perhaps were armed with weapons. Even according to the prosecution, the accused did not, at the first instance, attack Channegowda with any deadly weapon during the course of the fight between Channegowda and the accused. Even if the evidence of these witnesses is accepted that the accused later took the extreme course by giving a decisive blow on Channegowda, the situation perhaps was such. Even according to the prosecution, the accused did not, at the first instance, attack Channegowda with any deadly weapon during the course of the fight between Channegowda and the accused. Even if the evidence of these witnesses is accepted that the accused later took the extreme course by giving a decisive blow on Channegowda, the situation perhaps was such. In all probability his life was in danger and at any rate there could not be any doubt that the accused would have been dealt with severely by Channegowda and his party. The accused was managed with five persons and that had necessarily made the accused to defend himself and in doing so, if he had used the weapon like M.O. 3 and inflicted a decisive blow, it would constitute a case of necessary self-defence. In taking out the life of a person on the plea of self-defence, four cardinal conditions must exist: firstly, the accused must be free from fault in bringing about the encounter; secondly, there must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity; thirdly, there must be no safe or reasonable mode of escape by retreat; and fourthly, there must have been a necessity for taking life. 8. The law of right of self-defence as contained in section 100, Indian Penal Code is no different. The question is whether the above principles apply to the facts of this case. We have pointed out the circumstances under which the accused had to defend himself and while doing so, he inflicted a fatal injury. The State Public Prosecutor however, contended that the accused exceeded the right of self-defence. We do not think that he did so in this case. 9. As pointed out in Jai Dev v. State of Punjab1 in judging the conduct of a person who proves that he had a right of self-defence, allowance has to be made for his feelings at the relevant time. We do not think that he did so in this case. 9. As pointed out in Jai Dev v. State of Punjab1 in judging the conduct of a person who proves that he had a right of self-defence, allowance has to be made for his feelings at the relevant time. If he was faced with an assault which caused a reasonable apprehension of death or grievous hurt and that inevitably created in his mind some excitement and confusion, at such a moment, the uppermost feeling in his mind would be to ward off the danger and to save himself or his property, and so, he would naturally be anxious to strike a decisive blow in exercise of his right. It is no doubt true that in striking a decisive blow, he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force was used than is necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a Court room, long after the incident. The means which a threatened person adopted or the force which he used should not be weighed in golden scales. 10. Taking all the circumstances into consideration, in our opinion, the learned Judge has rightly acquitted the accused. 11. In the result, this appeal fails and is dismissed.