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2003 DIGILAW 1130 (AP)

Paladugula Kondaiah v. State Of A. P.

2003-09-05

BILAL NAZKI, K.C.BHANU

body2003
K. C. BHANU, J. ( 1 ) THE appeal is directed against the judgment, dated 13-9-2001, in S. C. No. 72/2000, on the file of the learne. d Sessions Judge, Warangal, whereby the accused-appellant was convicted under s. 302, I. P. C. and sentenced to life imprisonment. ( 2 ) THE facts necessary for the disposal of the appeal are briefly as follows. Accused and the deceased were friends. Deceased is brother of P. W. 1. P. W. 2 is the wife of P. W. 1. On 21-9-1999 the accused took the deceased to his house. In the night, the wife of the accused requested P. W. 8 to provide cooked rice which, she stated, the deceased would take food in their house. In the middle of the night, P. W. 4, daughter of the accused, heard the cries of her mother and woke up. She saw the deceased catching the hand of her mother. Accused and deceased had quarrelled with each other on that count. Deceased beat the accused. Then accused pushed the deceased due to which the latter fell on a cot. Accused then gave a blow with an axe on the face of the deceased as a result of which the deceased died. On the next day P. W. 1 lodged a report Ex. P1 with the police. P. W. 9 registered a case on the basis of that apart. P. W. 10 proceeded to the scene of occurrence and conducted investigation. He conducted inquest over the dead body of the deceased and seized certain articles. After the inquest was over, he sent the dead body for conducting postmortem examination. P. W. 11 conducted post-mortem examination over the dead body of the deceased. He opined that the deceased died as a result of head injury. On completion of investigation, P. W. 10 filed charge-sheet. A charge under S. 302, I. P. C. was framed. Accused denied the guilt. Prosecution examined 1-1 witnesses and marked 9 documents besides M. Os. 1 to 4. The trial court on assessment of the evidence on record accepted the extra-judicial confession of the accused and convicted and sentenced the accused as aforesaid by the impugned judgment, challenging the legality and correctness of which the accused preferred the present appeal. Accused denied the guilt. Prosecution examined 1-1 witnesses and marked 9 documents besides M. Os. 1 to 4. The trial court on assessment of the evidence on record accepted the extra-judicial confession of the accused and convicted and sentenced the accused as aforesaid by the impugned judgment, challenging the legality and correctness of which the accused preferred the present appeal. ( 3 ) LEARNED counsel for the appellant vehemently contended that the evidence of p. W. 4 shows that the deceased tried to outrage the modesty of the wife of the accused and, therefore, the accused used the right of private defence, and that the accused had otherwise no intention to kill the deceased, and so the conviction and sentence should be set aside. On the other hand learned public Prosecutor contended that the deceased only caught the hand of the wife of the accused, that there was no threat or danger to the life of the accused so as to use the right of private defence, and that the evidence on record shows that the accused exceeded the right of private defence and hence the appeal should be dismissed. ( 4 ) THE factual matrix of the case is not in dispute. Accused and deceased were friends. On the fateful day, deceased slept in the house of the accused. The case mainly rests upon the extra-judicial confession made by the accused before P. W. 8 and the evidence of P. W. 4. ( 5 ) P. W. 11 conducted Necropsy on the dead body of the deceased and on external examination found a laceration of 2" x 1/2" on forehead, four lacerations each of 1" x 1/2 x 1/2" on the right side of the face and a laceration of 1 x 1/2 x 1" on the lower lip. On internal examination, he found fracture to frontal bone, parietal bone, and right zygomatic bone. He opined that the injuries could be caused by a sharp and heavy weapon. He further stated that the death of the deceased was due to haemorrhage and neurogenic shock due to head injury. He issued Ex. P9 post-mortem certificate. His evidence and the recitals in Ex. P9 remain unchallenged. Learned counsel for the appellant also did not deny or dispute about the cause of the death of the deceased as testified by P. W. 11. He issued Ex. P9 post-mortem certificate. His evidence and the recitals in Ex. P9 remain unchallenged. Learned counsel for the appellant also did not deny or dispute about the cause of the death of the deceased as testified by P. W. 11. From the evidence on record we hold that the deceased met with a homicidal death. ( 6 ) THE dead body was found in the house of the accused. P. W. 10 observed the scene of occurrence and seized bloodstained clothes of the deceased. Ex. P7 is the rough sketch of the scene of occurrence. There is no dispute that the incident in question took place in the house of the accused. ( 7 ) P. W. 1 stated that on the day after the incident accused came to his house and told him that somebody assaulted the deceased in his house. He went to the house of the accused and found his brother lying dead on the cot. He then lodged Ex. P1 F. I. R. His evidence does not incriminate anything against the accused, except that the accused had motive to commit the offence, as the deceased had illicit contacts with the wife of the accused. This fact has not been disputed in the cross-examination of this witness. ( 8 ) P. W. 2 is the wife of P. W. 1. She stated that when she and her daughter were going at 9 p. m. on the date of incident for attending the calls of nature, they saw the accused knocking the door of the house of the deceased. The deceased came out of the house and both went out OH a bicycle. The next day, the accused informed her that he assaulted the deceased and the deceased was lying in his house. In the cross-examination she admitted that the accused told her that somebody had assaulted the deceased. She denied the suggestion that the deceased did not go along with the accused. Learned counsel admitted the taking place of the incident, but contended that it did not take place in the manner as stated by the prosecution. ( 9 ) P. W. 3 is the daughter of 2. She too stated that she saw the accused and deceased going on a cycle. P. W. 5 is an Inquest mediator. P. W. 6 is the mediator for the panchanama of scene of occurrence. ( 9 ) P. W. 3 is the daughter of 2. She too stated that she saw the accused and deceased going on a cycle. P. W. 5 is an Inquest mediator. P. W. 6 is the mediator for the panchanama of scene of occurrence. P. W. 7 is the photographer. P. W. 8 is the person who provided cooked rice to the wife of the accused to whom the accused made extra- judicial confession. ( 10 ) P. W. 4 is the daughter of the accused. Learned counsel for the appellant contended that P. W. 4 was not declared hostile and so if her evidence is accepted it makes clear that the accused only exercised his right of private defence and thus had not committed any offence. ( 11 ) THE accused took the plea of right of private defence at the time of examination under S. 313, Cr. P. C. The plea of right of private defence does not require to be proved beyond all reasonable doubt. The burden of proof can be discharged by preponderance of probabilities. Under S. 96, I. P. C. , nothing is an offence which has been done in the right of private defence. Right of self-defence has been granted to the citizen to protect himself by effective self-resistance against unlawful aggressor and no man is expected to fly away when he is being attacked. He can fight back and when he apprehends that death or grievous hurt would be caused by his adversary, he can retaliate till the adversay is vanquished. But he can exercise the said right only if he comes to the conclusion that the danger to his person is real and imminent. If he reaches the conclusion reasonably then he is entitled to exercise the right so long as reasonable apprehension had not disappeared. ( 12 ) LEARNED counsel for the appellant placed strong reliance upon a decision in yeshwant Rao v. State of M. P. , 1992 AIR scw 1864 : (1992 Cri LJ 2779) wherein their lordships of the Supreme Court have held that when an accused assaults a victim on seeing his minor daughter being sexually molested by the victim, right of private defence is extendable to such case. This case is distinguishable on facts. In the present case, the deceased was not sexually molesting the wife of the accused. This case is distinguishable on facts. In the present case, the deceased was not sexually molesting the wife of the accused. Therefore, the above decision has no application to the instant case. ( 13 ) LEARNED counsel also relied upon a decision in Moti Singh v. State of maharashtra (2002) 9 SCC 494 wherein it has been held by the Apex Court in paragraph 9 as follows :"section 102 of the Indian Penal Code says that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or even a threat to commit any offence though the offence may not have been committed and the right continues as long as such apprehension of danger to the body continues. Section 100 of the Indian penal Code confers the right of private defence of the body up to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the acts as may reasonably cause the apprehension that grievous hurt be the consequence of such assault. " ( 14 ) IN Deo Narain v. State of U. P. , 1973 cri LJ 677 : ( AIR 1973 SC 473 ), which the learned counsel for the appellant relied upon, it has been held as follows :". . . . . THE right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant, danger. " ( 15 ) THE learned counsel cited another decision in Vishwanath v. State of U. P. , AIR 1960 SC 67 : (1960 Cri LJ 154) in which the apex Court has held that the right of private defence arises if there is an offence affecting the human body. ( 16 ) LEARNED counsel for the appellant contended, on the strength of the above decisions, that the accused exercised the right of private defence and thus had not committed any offence. ( 16 ) LEARNED counsel for the appellant contended, on the strength of the above decisions, that the accused exercised the right of private defence and thus had not committed any offence. ( 17 ) ON the other hand, learned Public prosecutor relied upon a decision in Rizan v. State of Chhattisgarh, 2003 SCC (Cri) 664 : 2003 Cri LJ 1226 wherein the Apex court has held in paragraph 15 as follows. "sections 102 and 105, I. P. C. deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat to commit the offence, although the offence may not have been committed but not until that there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v. State of Punjab, AIR 1963 SC 612 : (1963 (1) Cri LJ 495) it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence. ( 18 ) IF the evidence on record indicates that the accused was put under a situation where he could reasonably have apprehended grievous hurt to him, then it would be inequitable to deny his right of private defence. Even according to P. W. 4 the deceased was not armed with any weapon. He only beat the accused. Thereupon the accused pushed the deceased as a result of which the deceased Tell on the cot. The accused then hit the deceased with an axe on his face. P. W. 4 did not say that there was any threat to the life of her father. ( 19 ) THE accused in his examination under S. 313, Cr. P. C. stated that the deceased came to his house and slept in his house as the police were chasing him suspecting him to be a naxalite. At about 2 or 3 a. m. , on hearing the cries of his wife he woke up and when the deceased attempted to outrage the modesty of his wife, he caught hold of the deceased. The deceased beat him. At about 2 or 3 a. m. , on hearing the cries of his wife he woke up and when the deceased attempted to outrage the modesty of his wife, he caught hold of the deceased. The deceased beat him. He then pushed him due to which the deceased fell on a cot. The deceased took out an axe. He pulled the axe from the deceased and gave a blow to him. Thus, according to the accused, in order to protect the chastity of his wife and to save his own life, he exercised the right of private defence. It is improbable that the deceased readily found an axe near the cot. Even if the explanation of the accused is accepted as true, it does not reveal that the deceased attempted to hack the accused with the axe. No doubt the act of the deceased of catching the hand of the wife of the accused is reprehensible, but the accused cannot take the law into his hands and hack the deceased with the axe, because from the evidence on record it is clear that there was no reasonable apprehension for the accused that the deceased might cause grievous hurt or such bodily injury as was likely to cause grievous hurt or death so as to exercise the right of private defence to the extent of causing death of the deceased. The deceased only caught the hand of the wife of the accused, as spoken to by P. W. 4. It is pertinent to note that in his S. 313, Cr. P. C. statement, the accused that the evidence of p. W. 4 was correct. P. W. 4 stated that the deceased caught the hand of her mother and a quarrel took place between accused and deceased. She further stated that the deceased beat her father and then her father gave a blow with an axe on the face of the deceased. Thus, from the evidence on record it can be said that the accused exceeded the right of private defence. ( 20 ) THE trial Court observed that the photographs show that blood was lying below the cot and so the attack must have been made while the deceased was sleeping. Thus, from the evidence on record it can be said that the accused exceeded the right of private defence. ( 20 ) THE trial Court observed that the photographs show that blood was lying below the cot and so the attack must have been made while the deceased was sleeping. This observation appears to be correct, because if the accused pulled the axe from the deceased and hit him on his face, as claimed by him in his statement under S. 313, Cr. P. C. , the deceased would have undoubtedly tried to ward off the blow. There is no such evidence on record. The intention of the accused can be gathered from the circumstances. The weapon used in the commission of the offence is axe and the parts on which the accused caused hacked are forehead and right side of the face. The injuries have been found fatal. Frontal bone, parietal bone and zygomatic bones were fractured. The accused must have used considerable force while hitting the deceased. These circumstances clearly show that the accused intended to kill the deceased. After considering all the aspects, the trial Court rightly convicted the accused. There are absolutely no grounds to interfere with the order of conviction and sentence. ( 21 ) IN the result, the appeal is dismissed, confirming the order of conviction and sentence recorded by the Court below. Appeal dismissed.