Hamsa v. State of Kerala — 1988 DIGILAW 98 (KER)

JUDGMENT M. Fathima Beevi, J. 1. The appellant has challenged his conviction under S.302 I. P. C. and sentence to imprisonment for life. 2. We shall briefly state the prosecution case; Hamsa, the appellant and Ahammad, the deceased were neighbours. On the date of occurrence, September 26, 1984, Hamsa cut and removed a bunch of banana from the property of Ahammad in his absence paying Rs. 10/- to his wife though Moosa, Ahammad's son bargained and wanted Hamsa to wait until his father returned after work. In the evening, Ahammad annoyed at this deal, went to the tea shop of Hamsa, returned the ten rupees, and demanded back the banana bunch. A quarrel ensued. Ahammad had to retreat as other shop keepers like PW 4 intervened. Hamsa and his father Marakkar while returning home from the tea shop at about 8 p.m. came in front of the house of Ahammad. They had to take the turn towards the north and go through the lane along the eastern side of the house of Ahammad to reach their home, Hamsa and Marakkar standing in front of the house of Ahammad challenged him using filthy and provocative words. Ahammad came on the road. Marakkar aged about 65 had M.O.3 walking stick. Hamsa had with him M. O.1 knife ordinarily used in the tea shop. The prosecution alleged that when Ahammad came on the road, Marakkar aimed a blow with the stick which Ahammad evaded. Ahammad and Marakkar grappled for the stick. The wife and children of Ahammad; who followed him made a hue and cry. PW 1, the younger brother of Ahammad residing close by was attracted to the scene. Ahammad managed to wrest the stick. He struck Marakkar with the same on his head. PW 1 intervened and separated Marakkar, while Ahammad was held by his wife and two sons, Marakkar then exhorted Hamsa to stab and Hamsa inflicted two stab injuries on Ahammad, one on the right side of the chest below the nipple and the other on his back below the shoulder. Ahammad walked for a few feet and fell down on the road. Hamsa and his father escaped from the scene with the knife. Ahammad died on the way to the Hospital. The incident was witnessed by Moosa, the son of Ahammad and Ami, his, wife, besides his brother Kunhammad (PW 1). 3. Ahammad walked for a few feet and fell down on the road. Hamsa and his father escaped from the scene with the knife. Ahammad died on the way to the Hospital. The incident was witnessed by Moosa, the son of Ahammad and Ami, his, wife, besides his brother Kunhammad (PW 1). 3. The defence version is that when Hamsa and his father were returning home from the tea shop along the Panchayat road in front of the house of Ahammad, they were attacked by Ahammad, his brother and sons with sticks and Ahammad sustained injury in the course of the scuffle. The plea was that Hamsa acted in exercise of the right of private defence. 4. The crime was registered against Hamsa and Marakkar for offence under S.302 read with S.34 I. P. C. on the basis of Ext. P1 first information statement given by PW 1 at 11.30 p.m. the same night. In the meantime Marakkar admitted in the Government Hospital was examined by the Doctor, PW 8. On the basis of Ext. P9 statement given by Marakkar, a counter case was registered against the deceased, Kunhammed and Moosa as per Ext. P10. The Circle Inspector investigated the two crimes, held the inquest on the dead body of Ahammad and visited the scene on 27-9-1984. He noticed blood stains on the road in front of the house, recovered M. O.3 stick and bunch of keys from the scene and M.O. 1 knife from the adjacent compound. The autopsy held by PW 7 revealed that Ahammad had two contusions and an abrasion and two incised injuries entering the chest cavity cutting the ribs and injuring the liver and lung. Death as certified in Ext. P4 had occurred due to the penetrating injury to the chest. Hamsa was examined by the Medical Officer on 29-7-1984 at about 9-30 a.m. He had tenderness at supra fubic region and abrasions on the right shoulder. Marakkar, admitted in the Hospital on 26-7-1984, had two lacerated wounds on the head besides abrasions and was discharged from the hospital only on 8-10-1984. The prosecution alleged that Hamsa and Marakkar sustained the injuries in the course of the same incident. Both the case and counter were charge sheeted on completing the investigation. The accused in the counter case were acquitted. The prosecution alleged that Hamsa and Marakkar sustained the injuries in the course of the same incident. Both the case and counter were charge sheeted on completing the investigation. The accused in the counter case were acquitted. In the present case Marakkar, the second accused, was acquitted while convicting the appellant rejecting the plea of private defence. 5. The witnesses to the occurrence are PW 1 Kunhammad, PW 2 Moosa and PW 3 Ami. The learned counsel for the appellant reiterated the plea of private defence and contended before us that the materials in the prosecution evidence fully support the defence plea. It was argued that the genesis of the incident had been deliberately suppressed by the witnesses who had given only distorted version, the probabilities of the appellant having used the knife against Ahammad while appellant's aged father Marakkar was in distress have been clearly made out from the admissions made by the prosecution witnesses and the circumstances proved and that the conviction is therefore unwaranted. 6. There had been no serious controversy on the fact that Ahammad received fatal injurious at the hands of the appellant in the course of the incident that happened on the road in front of the house of the deceased at about 8 p. m. in the night. It is also revealed that the appellant's father was attacked by the deceased with a stick in the course of the same incident. In such a case the crucial question for consideration is as to who started the aggression and under what circumstances the fatal injury had been caused. The definite plea of the appellant is that he acted in exercise of the right of private defence. PW 1, the younger brother of Ahammed, PW 2 Moosa, his son and PW 3 Ami, the wife are indeed the close relations of the deceased deeply interested in the prosecution. Their evidence cannot however be discarded on that score when they happened to be the natural and probable witnesses whose presence at the scene is undisputed. We have only to examine the intrinsic worth of their testimony by closely scrutinising the version and testing the veracity of the same in the light of the broad probabilities and natural course of human conduct. 7. We have only to examine the intrinsic worth of their testimony by closely scrutinising the version and testing the veracity of the same in the light of the broad probabilities and natural course of human conduct. 7. PW 1 had been residing in the adjacent house on the north at a distance of about 20 metres away from the house of the deceased. PWs 2 and 3 were in the house along with the deceased when Hamsa and Marakkar reached in front of the house at the time of the occurrence, PW 1 reached the scene attracted by the hue and cry while the scuffle was going on between Ahammad and Marakkar. PW 2 Moosa and PW 3 Ami followed the deceased when he came out of the house. The house is situated only 5 metres away from the road margin. The turning to the north from the Panchayat road is about 10 feet to the east of the entrance to the house of the deceased. The stabbing is stated to have occurred at a point further west to the gate at a distance of about 8 metres. 8. PWs 2 and 3 in narrating the incident said that Marakkar abused Ahammad, used provocative words and challenged him to come out. They have seen Marakkar aiming a blow with the stick on the deceased and the latter catching hold of the stick and both grappling before the deceased wrested the stick and dealt blows on the head of Marakkar. Hamsa was standing by the side of his father at that time. PW 1 reached the scene while Ahammad and Marakkar had been engaged in the scuffle. He separated Marakkar only after he received the blows, according to PWs2 and 3. PW 1 does not state that he had seen Ahammad beating Marakkar with the stick. He does not admit that Marakkar sustained injuries or explain the injuries found on his person. He did not see how the incident commenced. It is only PWs 2 and 3 who speak to the events that preceded the attack on Marakkar by the deceased. Pw2 and his younger brother Koya followed Ahammad from the house when the latter ignoring the resistance of his family rushed to the road. PW 3 the wife took the lamp and placed it on the edge of the varandha and watching the incident came near her husband. Pw2 and his younger brother Koya followed Ahammad from the house when the latter ignoring the resistance of his family rushed to the road. PW 3 the wife took the lamp and placed it on the edge of the varandha and watching the incident came near her husband. All the three had been trying to persuade Ahammad to retreat while the scuffle was going on. It was dark night and the only illumination was the kerosine lamp which PW 3 had placed near the scene. PW 2 is not positive that before Marakkar was beaten on his head with the stick, his father was assaulted. There is no consistent and credible evidence that before the scuffle ensued, there was an attempt on the part of the appellant or his father to assault the deceased. 9. Ahammad had been rushing to the road provoked by the words of the appellant. His wife and sons followed him. It is quite probable that before others could reach the scene and observe the action something happened between Ahammad and Marakkar who were found grappling for the stick. The deceased managed to overpower Marakkar and wrest the stick from him and he struck the old man on his head repeatedly, in the presence of the appellant. It was then the appellant used the knife against the deceased. The probabilities are that the deceased, a middle aged wood cutter, though unarmed came out of his house agitated in order to retaliate and advanced towards Marakkar aggressively and grabbed the stick from the hands of the later. Even then the appellant a youth of 21 did not strike him or use the knife he had. It is only when the deceased snatched the stick and dealt the blows on the head of his father, the appellant struck the deceased with the knife. We find that there is no cogent evidence that the first blow was attempted by the appellant or his father. The weapon was used by the appellant only after serious injuries had been caused by the deceased on appellant's father. The act of the appellant in such circumstance is in good faith in the exercise of the rights of private defence. 10. Every person has a right to defend his own body and the body of any other person against any offence affecting the human body. The act of the appellant in such circumstance is in good faith in the exercise of the rights of private defence. 10. Every person has a right to defend his own body and the body of any other person against any offence affecting the human body. So long as the accused remained on the road and did not attempt to assault the deceased until the latter advanced towards them aggressively, the accused cannot be treated as aggressors. No danger to person arises when one is merely abused. The provocation however grave caused on account of wordy alteration could not give the deceased the right to strike Marakkar with the stick snatched away from him. The appellant was, therefore, justified is using the knife against the deceased who was the real aggressor. 11. The learned Judge in rejecting the plea of the appellant without properly appreciating the evidence found that it was the appellant who first committed the aggression and Ahammad had beaten Marakkar only after Marakkar tried to beat him with a stick. PW 1 who denied the beating had, under stress of cross examination, admitted the truth of his previous statement that the altercation was followed by a scuffle, there was push and pull, the deceased beat Marakkar and appellant stabbed. Similarly PW 2 stated that in the course of tussle and fight deceased sustained the stab injuries and Marakkar received blows. PW 3 when confronted said that the deceased was agitated over the earlier incident and was awaiting to retaliate. The statement of PWs 2 and 3 that Marakkar aimed a blow on Ahammad before he was beaten is therefore incredible, inconsistent and inherently improbable. There is no basis for the finding that the appellant was the aggressor. 12. The incident happened just in front of the house of the deceased on the road at a point further west of the turning. The accused have reached the place without entering the lane. That circumstance would not indicate that the accused were the aggressors. It is seen that the entrance to the house of the deceased was only a few feet away from the lane. There is no evidence as to the spot where the accused persons stood when the altercation took place. The accused have reached the place without entering the lane. That circumstance would not indicate that the accused were the aggressors. It is seen that the entrance to the house of the deceased was only a few feet away from the lane. There is no evidence as to the spot where the accused persons stood when the altercation took place. The witnesses stated that they were in front of the house on the road but they said that there had been a push and pull and scuffle. In the course of such action it is quite possible that the victim as well as the assailant moved away from the original position. So the fact that the actual stabbing happened at a point further west of the turning is not a circumstance to conclude that the appellant and his father had been the aggressors. 13. The appellant was armed with a knife and he stabbed the deceased after his father was separated. PW 1 intervened in the course of the scuffle and the deceased was held back by his wife and children. It cannot however be said that there could not have been reasonable apprehension of danger at that point of time. The stabbing had taken place when the appellant's father was subjected to violence by the deceased. The fact that the deceased had already snatched the stick from Marakkar and was still possessed of the same even after the intervention of PW 1 is significant. The grip of fear in the mind of Marakkar who was beaten on his head with a heavy walking stick must have been lingering and his outburst to his son to stab, even if true, can only be the manifestation of that fear. It is at that moment the appellant inflicted the injuries on the deceased. In order to find whether the right of private defence was available to the accused, the entire incident must be examined with care and viewed in the proper setting. Thus viewed we are persuaded to hold that the appellant has attacked the deceased in good faith on reasonable apprehension of danger to his father. We are, therefore, unable to agree with the learned Judge that there is no justification for the appellant in inflicting the injuries. 14. Thus viewed we are persuaded to hold that the appellant has attacked the deceased in good faith on reasonable apprehension of danger to his father. We are, therefore, unable to agree with the learned Judge that there is no justification for the appellant in inflicting the injuries. 14. We have no hesitation to hold that the appellant in inflicting two successive stabs on the chest of the deceased had intended to cause such bodily injury sufficient in the ordinary course of nature to cause the death of the victim. Though the appellant had thus caused the death only in exercising the right of private defence, the force used appears to be disproportionate. It is true that the appellant acting in good faith was not expected to modulate the defence step by step. There had been no resistance from the deceased on receiving the first stab. The appellant had apparently used more force than what was necessary in the circumstances of the case by inflicting a second stab and he had thereby exceeded his right. The appellant is, therefore, guilty of the offence punishable under S.304 Part I of the Indian Penal Code and not of murder under S.302 I.P.C. The conviction of the appellant has to be altered accordingly. In the result, the appeal is allowed and the conviction and sentence under S.302 I.P.C, are set aside: The appellant is convicted under S.304 F Part I of the Indian Penal Code and sentenced to Rigorous Imprisonment for 7 years.