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2000 DIGILAW 65 (KAR)

RAFEEK HUSENSAB KORTI v. STATE OF KARNATAKA

2000-01-21

M.F.SALDANHA

body2000
M. F. SALDANHA, J. ( 1 ) I have heard the appellant's learned Counsel as also the learned additional State Public Prosecutor Sri S. S. Koti, in these two appeals. Criminal Appeal No. 1106 of 1996 is directed against the conviction of the appellant who was original accused 2 and who has been sentenced to undergo R. I. for five years pursuant to his conviction under Section 304, part II of the IPC. ( 2 ) IT was alleged that the accused persons had been spreading certain rumours with regard to the conduct and physical condition of some of the womenfolk belonging to the complainant's side, that this issue was placed before the panchayat on the evening on 30-1-1995 and that accused 1 did not turn up as required by the panchayat. The complainant's side went to the house of accused 1 in a group and they climbed on the top of the roof and adopted a very aggressive posture at which time it is alleged that accused 2 came out with a knife and stabbed the deceased noorahammed on the chest. There are two other minor injuries on his person with which we are hardly concerned. Noorahammed died within a short time and a complaint was lodged with the police who promptly arrested the five accused and on completion of the investigation they were put up for trial before the Court of Sessions at Bijapur on a charge of murder. The Trial Court after assessing the evidence recorded the finding that the evidence only disclosed an offence against accused 2 and having regard to the nature of the incident and the injury, convicted him under Section 304, Part II of the IPC and awarded him a sentence of five years R. I. The present appeal is directed against this conviction and sentence. ( 3 ) CRIMINAL Appeal No. 276 of 1997 is preferred by the State and is for enhancement of punishment, the main contention being that the accused has been dealt with too leniently. I need to mention that the state has also challenged the acquittals under Section 302 of the IPC by way of Criminal Appeal No. 274 of 1997 and the record of the Court indicates that this appeal came to be dismissed at an earlier point of time. ( 4 ) I have heard the learned Counsel on both sides and reviewed the entire record. ( 4 ) I have heard the learned Counsel on both sides and reviewed the entire record. Mr. R. B. Deshpande, learned Counsel who represents the accused brings it to my notice that having regard to the nature of the rumours that the accused are supposed to have spread and since the rumours concerned young women one of whom was prejudicially affected because her marriage alliance was shattered due to the rumours that the accused had spread, resulted in the complaint to the panchayat. When accused 1 did not turn up at the panchayat, the complainant and several persons went to his house and it is very clear that they were projecting not only a hostile but an aggressive posture. Mr. R. B. Deshpande relies on the fact that some of them had climbed on the top of the roof and he submits that even though the prosecution witnesses particularly p. Ws. 2 and 4 do not admit this, that it is very clear that the intention of the mob that had assembled was to not only damage the property but to get the occupants of the house to come out and to thereafter assault them. His submission is that if the Court were to correctly scrutinise the sequence, what will be evident is the fact that accused 2 rushed to the assistance of his brothers and family members and since the accused were outnumbered that he had attacked virtually in defence. Though the learned Counsel has submitted that no specific plea of self-defence was taken before the Trial Court that it is available to the accused even at the appeal stage as it is a legal defence which can always be argued. The real question is as to whether on the material before the Court such a defence can be upheld. The learned Counsel is right when he points out that it is permissible for him to adopt this line of argument but the interesting point made by him was that even though in the majority of cases the Courts are concerned with a situation whereby the accused are at the receiving end and that they attacked or inflicted injuries to defend life or property from further harm or danger, the learned Counsel submitted that the law of self-defence does permit anticipatory action in those of the situations where a serious bodily harm and damage is imminent. The explanation for his submission is that in the background of this case, where the complainant and a large mob had come to the house of the accused and where it was very clear that since the accused 1 had not come to the panchayat that they intended to settle the scores then and there and from the fact that they had even climbed on the top of the house, it was very clear that they wanted to get the accused and their family members out of the premises and then attack them. His submission is that the accused were outnumbered and that if the accused 2 in an act of desperation bit out with a knife, that the use of force in the circumstances is within the framework of the law. ( 5 ) THE learned Additional State Public Prosecutor has countered the submission by pointing out that the evidence before the Court does not clearly indicate as to how many persons had assembled on either side nor is there any indication that the complainant and his group were carrying any arms or that they had made any statement or gestures indicative of the fact that they were inclined to get violent, and it is his submission that the persons had gone there to bring accused 1 to the panchayat or if necessary to forcibly take him there. His submission is that in this background, there was no apparent danger to life or property and that the use of force and that too the incident of stabbing the deceased was an act of aggression and not a defensive act. ( 6 ) THE argument canvassed by Sri R. B. Deshpande, envisages a fine aspect of the law relating to self-defence and I do concede that in a small category of cases the law recognises the position that if the accused legitimately and genuinely apprehended from the circumstances and developments, that an attack was imminent and that the attack would have posed a danger to life and property, that the use of force as a defence would be permissible. The law however lays down parameters with regard to the type of force and the level of force that can be used in self-defence and the guiding principle is that the degree of force must be limited to the extent that is absolutely necessary and that more force than is essential to ward off the danger or to defend oneself cannot be permitted. The law with regard to this aspect has been the subject-matter of several decisions which I need not recount but Mr. R. B. Deshpande, did point out to me that in a desperate situation it is not easy for an accused person to evaluate as to how much force is legitimate and to restrict oneself strictly to those levels and again the learned Counsel's submission is justified because even the Additional State Public Prosecutor has observed that the quantum of force that is to be used or that is permitted cannot really be evaluated in "golden scales". The principle that emerges is that the level of force that is necessary to repel the attack would be justified but that will be gauged by the Court by virtually recreating the incident in question. Adopting this formality, I have carefully checked the evidence and the learned Additional State Public prosecutor is right when he points out that there is nothing in the record to indicate exactly how many persons were present on either side nor is there anything to establish that anybody from the complainant's side was armed. It is true that they had climbed on the roof of the house but this, gesture alone would not necessarily create the impression that they were prone to violence but it does appear that the intention was to get accused 1 out of the house and take him to the Panchayat. Whether the accused were outnumbered or not is not established and in these circumstances, it would not be permissible to accept the argument that accused 2 acted in self-defence because one of the circumstances is that there was not even the slightest injury on any of the accused. I do not dispute that as Mr. Whether the accused were outnumbered or not is not established and in these circumstances, it would not be permissible to accept the argument that accused 2 acted in self-defence because one of the circumstances is that there was not even the slightest injury on any of the accused. I do not dispute that as Mr. Deshpande pointed out, there could be a situation in which the right of self-defence is exercised before an actual attack takes place and in order to ward it off, but here again it will have to be demonstrated by the defence that an attack was imminent and that the attack would have been serious enough to endanger life and property. The present record falls short of these requirements and even though the submission in law advanced by the learned defence Counsel or rather the proposition is fully justified it would not be possible to extend the benefit thereof to accused 2. ( 7 ) ON a consideration of the overall material the conviction of the accused for the offence under Section 304, Part II of the IPC cannot be faulted. The conviction is accordingly confirmed. On the question of sentence, mr. R. B. Deshpande, submitted that the age of the accused, his status, the circumstances under which the incident took place, the fact that the five years have now elapsed are all grounds on which the Court should consider the defence plea that the accused should not be sent back to jail. He also pointed out that the accused is an agriculturist and that he has no previous conviction or criminal background. ( 8 ) THE learned Additional State Public Prosecutor vehemently opposed any reduction of the sentence because he submitted that this was a stab injury inflicted on the vital part of the body with a deadly weapon and which has resulted in immediate death of Noorahammed, that the trial Court itself has shown maximum indulgence by reducing the conviction to one under Section 304, Part II of the IPC and again in awarding a sentence of only five years R. I. as against the sentence of life imprisonment which the accused would have got had it been under section 302 of the IPC and in this background his submission was that the State is fully justified in its plea for enhancement of the sentence. The Court is required to assess the individual facts and circumstances in every case independently and on the material before me, after a very careful evaluation of everything that is on record, the position in law and the submissions canvassed by the two learned Counsels, in my considered view this is not a case that calls for any enhancement. The state Appeal in Criminal Appeal No. 276 of 1997 therefore fails and stands dismissed. ( 9 ) IN my considered view, there is much substance in the plea put forward by the learned defence Counsel because as far as the aspect of the sentence is concerned, I cannot overlook the fact that the complainant and his party were effectively the aggressors. The accused obviously took anticipatory action which the law does not entitle him to do so. In the circumstances of the case, he is therefore required to be punished for what he has done. However, I would categorise this case as a borderline case and consequently I accede to the defence submission that no useful purpose would be served by sentencing accused 2 to prison for a long period of time. Normally I would have reduced the sentence to the period undergone but unfortunately that is inadequate. Consequently, it is necessary while awarding a sentence of reasonable duration to also realise that the deceased family are persons of modest means and that it would be in the interest of justice to impose a fine that is in consonance with the status and financial capacity of the accused and to direct the payment of that amount of money to the father of the deceased as and by way of compensation. ( 10 ) THE conviction of accused 2 for the offence punishable under section 304, Part II stands confirmed. In modification of the sentence awarded to him by the Trial Court, it is directed that accused 2 shall undergo R. I. for a period of two years and that he shall pay a fine quantified at Rs. 5. 000/ -. No in-default sentence is awarded and the accused 2 is granted a period of twelve weeks within which to deposit the fine amount in the Trial Court failing which the Trial Court to recover the same from him. 5. 000/ -. No in-default sentence is awarded and the accused 2 is granted a period of twelve weeks within which to deposit the fine amount in the Trial Court failing which the Trial Court to recover the same from him. On recovery of the fine amount, the Trial court to issue notice to P. W. 4-Mainuddina, the father of the deceased noorahammed and to pay over the amount of Rs. 5,000/- to him. The accused shall be entitled to set off for the period undergone by him in custody. Criminal Appeal No. 1106 of 1996 partially succeeds and stands disposed of Criminal Appeal No. 276 of 1997 stands dismissed. The bail bond of the accused to stand cancelled and he is directed to surrender. --- *** --- .