Kochu Pillai Nair v. State of Kerala — 1992 DIGILAW 372 (KER)

Judgment :- Manoharan, J. Accused in Sessions Case No.107 of 1988 is the appellant. Learned II Additional Sessions Judge, Quilon found him guilty of the offence punishable under S.302 I.P.C., convicting him thereunder and sentenced him to undergo imprisonment for life. Accused challenges the conviction and sentence. 2. Prosecution case in brief is as follows: Kunjukrishna Pillai (the deceased), PWs.1, 2 and 3 were working as head-load workers at Cinemaparambu junction in Poruvazhi Village. Accused had a pan shop nearby. On 22-4-1988 at about 7 a.m. accused and the deceased Kunjukrishna Pillai railed bad names. Thereafter, accused left for his shop. At about 8 p.m. on the same day Kunjukrishna Pillai while was proceeding through the road in front of the shop of the accused, accused again called bad names and threw two glass jars and then took two soda bottles in his hands. Seeing this, Vasudevan Pillai, the brother of the deceased asked him to go away without creating a scene; whereupon the deceased left towards the water tank situated some distance away from the shop of the accused. Then the accused went to the deceased with a knife and at the road puramboke near the water tank away on the west of his shop, the accused holding the face of the deceased with his left palm, planted a stab with M.O.1 knife below the left nipple of Kunjukrishna Pillai. On sustaining the said injury Kunjukrishna Pillai fell. Then he stood up and staggered to the road pressing the wound with his hand. Accused went back to his shop with M.O.1 knife. 3. The injured was taken to the Government Hospital, sasthancotta by P.W.1 and others. On the way he succumbed to the injury. On reaching the hospital, he was pronounced dead. Thereafter, PW-1 went to the Soornad Police Station and gave Ext.P1 F.I. Statement at 9 p.m. on the same day before PW-9, the Sub Inspector of Police. On the basis of Ext.P1 he registered Ext.P5 F.I.R. He conducted the investigation as authorised by the Deputy Superintendent of Police, Karunagappally. 4. PW-9 held the inquest over the dead body at the hospital. Ext.P6 is the inquest report. PW.6 conducted the autopsy and issued Ext.P2 postmortem certificate. He then went to the scene and prepared Ext.P7 scene mahazar. Pw.7 prepared Ext.P3 plan of scene of the occurrence. 4. PW-9 held the inquest over the dead body at the hospital. Ext.P6 is the inquest report. PW.6 conducted the autopsy and issued Ext.P2 postmortem certificate. He then went to the scene and prepared Ext.P7 scene mahazar. Pw.7 prepared Ext.P3 plan of scene of the occurrence. Pw.9 questioned the witnesses, completed the investigation and laid the charge against the accused. 5. On the accused pleading not guilty to the charge, prosecution examined P.Ws.1 to 10 and produced Exts. P1 to P5 and M.Os.1 to 11. On the side of the defence Ext.D1, portion of the F.I. Statement and Exts. D3 and D4 portions of the case diary statements of P Ws. 2 and 5 respectively were marked. 6. In the statement under S.313 Cr.P.C. accused said that the witnesses are the members of the Marxist Party and he is a sympathizer of the Congress Party. On the date of occurrence, in the morning, deceased along with others while were under a banian tree made fun of him, he (accused) called bad names against Kunjukrishna Pillai. At about 7.3- p.m. while he was closing the shop, deceased came and threatened that the accused would not be allowed to close the shop. Then he called bad names. Immediately, the deceased fetched his brother Vasudevan Pillai, P.W.1 Thankappan and PW.3 Shamsuddin. Thankappan broke the jars in the shop with a hook that he had with him. Vasudevan Pillai (CW-12) thereupon attempted to stab him (accused) with the knife. Out of fear he took a glass piece that was lying there and waved the same to save himself and escaped from there; the glass piece struck somebody. 7. PW-1 swears, he witnessed the occurrence, that on 22-4-1988 at about 7 p.m. he heard a commotion from the direction of the shop of the accused. Out of curiosity, he went over there. He saw accused and deceased calling bad names. Accused broke two glass jars and took soda bottles and threw it. CW-12, Vasudevan Pillai asked the accused to go away; whereupon the deceased went towards west near the water tank. Immediately the accused went to the deceased with M.O.1 knife and holding the face of the deceased with his left hand planted a stab with M.O.1 below the left nipple of Kunjukrishna Pillai, the deceased. CW-12, Vasudevan Pillai asked the accused to go away; whereupon the deceased went towards west near the water tank. Immediately the accused went to the deceased with M.O.1 knife and holding the face of the deceased with his left hand planted a stab with M.O.1 below the left nipple of Kunjukrishna Pillai, the deceased. On sustaining the injury Kunjukrishna Pillai fell at the scene, and the accused went back to his shop with M.O.1. Kunjukrishna Pillai (deceased) stood up and staggered to the road. From there he was taken to the hospital, where he was pronounced dead. P W.1 also swears to his having tendered Ext.P1 F.I. Statement before PW-9, the Sub Inspector of Police. PW1 also has stated that at 7 a.m. accused called abusive words against Kunjukrishna Pillai (deceased) under the influence of drink. According to him, the occurrence in the evening was on account of the same. 8. PWs. 2,3 and 4-are also the occurrence witnesses. PWs. 2 and 3 swear to the occurrence in the morning as well as the occurrence in the evening in which Kunjukrishna, Pillai (deceased) sustained the stab injury. PWs.2 and 3 are also head-load workers as Kunjukrishna Pillai. PW-4 resides at Cinemaparambu and he said, when he came for purchase he saw the occurrence in which Kunjukrishna Pillai sustained the injury. He also has sworn to the sequence of events, which resulted in the death of Kunjukrishna Pillai. 9. Learned counsel for the appellant contended that these witnesses are partisan witnesses and they could not have been present at the scene to witness the occurrence. It was argued that only a distorted version of the occurrence is placed before the Court. Mere interestedness or that the witnesses are partisan by it self is no ground to reject their evidence provided they are natural and probable witnesses. P.W-2 claims that he belongs to R.S.P. The evidence of PW.3 would indicate that he belongs to INTUC and PW-4 claims that he has no politics. The deceased and PWs.1 to 3 being head-load workers their presence at the j unction since is consistent with their occupation cannot be doubted. The attempt to show that by 7 p.m. their work would be over was denied by PWs.1 to 3. The deceased and PWs.1 to 3 being head-load workers their presence at the j unction since is consistent with their occupation cannot be doubted. The attempt to show that by 7 p.m. their work would be over was denied by PWs.1 to 3. With due regard to the nature of their work, it cannot be said that their work could be over by 7 or 7-30 p.m. as is contended by the accused. 10. As is revealed from the statement of the accused under S.313 Cr.P.C. it is not as if the accused was not involved in the transaction. But, according to him, the occurrence took place not in the manner alleged by the prosecution. His statement would disclose a plea of private defence. Under S.105 of the Evidence Act, the burden is on the accused to prove that he is entitled to an exception. He can- discharges the burden even without leading any independent evidence. He can rely on the very prosecution evidence and show that he acted in exercise of his right of private defence. The degree of proof necessary 'to establish the plea of private defence is preponderance of probability - it is not as onerous as the burden of the prosecution which has to prove the prosecution case beyond the shadow of reasonable doubt. Even his endeavour to prove the right of private defence is not successful if he is able to create a reasonable doubt as to the prosecution case then he will be entitled to the benefit of doubt. 11. Now the question for consideration is whether the accused is successful in proving that he is entitled to private defence. As noticed, according to PWs.1 to 4, accused stabbed the deceased when he was proceeding towards the water tank situated on the west. What is important to be noted is, according to these witnesses when the deceased came in front of the shop of the accused he broke two glass jars and armed himself with two soda bottles. It was then that Vasudevan Pillai intervened and asked the deceased to go away upon which he left towards the water tank. Accused went over therewith No.l and stabbed him. It was then that Vasudevan Pillai intervened and asked the deceased to go away upon which he left towards the water tank. Accused went over therewith No.l and stabbed him. On the other hand, the case of the accused is that the deceased along with P. W.2 and others came to his shop, broke the glass jars and when they attempted to attack him, he waved a glass piece and escaped. 12. The fact that, there were glass pieces in front of the shop of the accused is the main piece of evidence on which the case of private defence is built. The crucial question therefore is as to the exact place where the deceased sustained injury. If, as a matter of fact, the deceased sustained injury away from the shop of the accused as is maintained by PWs.1 to 4 then the accused would not be entitled to the right of private defence. Ext.P3 prepared by PW.7 shows the scene of occurrence; it is in agreement with Ext.P7 scene mahazar. Ext.P7 would show that item No.12 in Ext.P3 is the shop that belongs to the accused. The scene of occurrence is about 8 metres away from the shop of the accused and in between there is another shop. M.O.11 coagulated blood was seized by PW.9 from the scene of occurrence. Thus, Exts.PS and P7 would corroborate the evidence of PWs.1 to 4 to the effect that the occurrence took place away from the shop of the accused. 13. According to Pws.1 to 4, accused, who was enraged and inimical on account of the incident in the morning, when saw the deceased in the road in front of his shop, threw two glass jars and armed himself with two soda bottles Therefore, according to these witnesses, the glass jars were broken by the accused himself. 14. The right of private defence is available in the face of imminent peril to those who act in good faith, but the said right cannot reach a person who stage-manages in a situation with an object to use the same as a shield to justify an aggressive act. 15. Even assuming that the accused had the right of private defence on account of the deceased breaking the glass jars, the said right would cease to exist as soon as the deceased went away from the scene. 15. Even assuming that the accused had the right of private defence on account of the deceased breaking the glass jars, the said right would cease to exist as soon as the deceased went away from the scene. The right of private defence will spring on the aggression either to person or property - private defence would commence on the apprehension to life or grievous hurt as a result of the assault and will continue till the aggression is neutralized or otherwise ceases. It is not sufficient for the accused merely to establish that the right had commenced; he must further establish that the right has not ended. In the decision in Govind Natha v. State (AIR 1961 Guj.11) it is observed that it is necessary for the defence to prove that reasonable apprehension, which has been created in the mind of the accused as a result of the act of the aggressor, had continued at the time when he inflicted the injury on the accused. 16. The testimony of P. Ws.1 to 4 gets corroboration from the evidence of PW.9 who prepared Ext.P7 scene mahazar and Ext.P3 plan, which would show that the scene of occurrence is away from the shop of the accused and in between his (accused) shop and scene of occurrence there is another shop. Since the accused stabbed the deceased away from his shop and after the deceased left towards west, the accused no longer can claim or entertain any apprehension as on the deceased leaving the shop of the accused the aggression ceased to exist. Thus, we find no substance in the case of the defence that he is entitled to the right of private defence. On the other hand, we find the evidence of PWs.1 to 4 is acceptable and that the learned Sessions Judge was right in accepting their evidence. The finding, conviction and the sentence awarded by the learned Sessions Judge do not suffer any infirmity. Consequently, the conviction and sentence are only to be confirmed and the appeal is liable to be dismissed. In the result, the appeal fails and the same is dismissed.