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2004 DIGILAW 280 (KER)

Subair v. State of Kerala

2004-06-23

K.A.ABDUL GAFOOR

body2004
Judgment :- The appellant was charged for the offence punishable under Section 302 IPC. But he was convicted for the offence punishable under Part-1 of Section 304 IPC having found that on the sudden and unexpected attack he lost himself control and reacted swiftly and therefore he was entitled to the benefit of Exception 1 of Section 300 IPC. Therefore he was guilty only of culpable homicide not amounting to murder. It was found that there was intention on his part to cause injury likely to cause death. 2. According to the learned counsel for the appellant, the entire evidence on record when taken together will reveal that the exercise of private defence is available in this case, even though it was not specifically pleaded. Necessarily, the benefit of right of private defence ought to have been extended to the appellant/accused. 3. It is further contended that the prosecution had not revealed the entire occurrence and did not divulge the entire facts as well. This resulted in concealment of the facts relating to his right of private defence. Even going by the evidence of PW-3, the only occurrence witness, no consistent case is revealed. Therefore it would be unsafe for any court to depend upon the sole witness like PW-3 to fasten guilt. 4. It is submitted by the Public Prosecutor that even if it was a case of exercise of right of private defence, as the deceased or PW-3 did not have any weapon in their hands, the accused should not have reasonably apprehended death from out of the assault by the deceased, nor would have reasonably apprehended any grievous hurt. So, even if the plea of right of private defence is accepted at the appellate stage, it can be easily found that he had exceeded the right of private defence available to him and is consequently guilty of the offence punishable under Section 304 Part I IPC. It is further submitted that the recovery of M.O-3 weapon from the residence of PW-6, the father of the accused, based on his own disclosure reveals the real involvement in the occurrence. It is further submitted that even though PW-3 had accompanied the deceased with the object of questioning the accused about the alleged misbehaviour towards the wife of PW-3, he can be believed in this case. It is further submitted that even though PW-3 had accompanied the deceased with the object of questioning the accused about the alleged misbehaviour towards the wife of PW-3, he can be believed in this case. He had spoken to before the trial court almost consistently as he had disclosed to the police during investigation. So, on any count, the case does not justify interference. 5. It is the prosecution case that there was a rumor in the locality that the accused was having illicit intimacy with PW-4, the wife of PW3, who had been staying in the house of PW-5. As PW-5 insisted, PW-3 shifted residence from the house of PW-5. It has come out in evidence that the accused came to the new residence of PW-3, during late midnight, when PW-3 had gone for the purpose of taking fish for vending. When PW-4 informed this fact to PW-3, he consulted his friend, the deceased, and the deceased and PW-3 evolved a plan to question the accused on this fact and it was in that course of action, the occurrence had taken place. Admittedly by the prosecution, the occurrence had taken place almost near the residence of the accused. Going by the evidence of PW-1, the only occurrence witness in this case is PW-3. When there was a talk between the accused and the deceased Biju, the accused scolded Biju. Thereupon Biju slapped on the face of the accused. Biju also pushed him down. Accused fell down. It was at that point of time, accused caught hold of his shift and stabbed successively twice on the left side of the chest. Thereafter, accused ran away. Biju was taken to hospital by PWs 2 and 3. He was declared dead by PW-13. Autopsy was conducted by PW-14. Ext.P12 is the post mortem certificate. It reveals several injuries. All injuries except 1 and 2 are simple abrasions and contusions which could have been caused due to fall and the scuffle between the two. Both the fatal injuries 1 and 2 mentioned in Ext.P12 were on the left side below chest and the injuries had been inflicted, as spoken to by PW-3, in two successive stabs that too immediately after he had got up from the fall due to the push by the deceased. Earier, the deceased had also slapped on the face of the accused. Earier, the deceased had also slapped on the face of the accused. In such circumstances, anyone who will not behave as a coward, will necessarily resist and it was in that resistance the accused caught hold of the shirt of the deceased and stabbed him immediately. Therefore it is rather an exercise of right of private defence. 6. True, the accused did not take advantage of that plea in the court below. It is now trite law that the plea of private defence available from the evidence of the prosecution witness, shall be considered by the court and if the incident emerges from the probability of private defence, necessarily, the benefit arising therefrom shall be given to the accused to shelter him under the exceptions regarding right of private defence. 7. In this regard the evidence of PW-2, though a hostile witness, is also much material, because, according to him also, the deceased had slapped on the face of the accused. There was a scuffle between deceased and accused. Thereafter at that point because of fear he went to the nearest house. When he heard a noise from the place of occurrence, he came to the place of occurrence with the owner of the said house. They saw PW-3 attempting to take the deceased. This evidence also probabilise the availability of plea of right of private defence. 8. When private defence is so available, the only further aspect for consideration is whether he had exceeded the right of private defence. When confronted with a situation of scuffle between two wherein one had slapped and pushed down, he may take every effort to avert the further threat on his body. As spoken to by PW-3 who accompanied the deceased, the accused after getting up, in quick succession inflicted two injuries on the chest of the deceased. In between the two injuries, the deceased had never fallen down. After the second injury, he had run away and fallen down. That means, the accused had only inflicted two injuries. 9. Of course, those two injuries were on the vital part of the body and were so grievous to cause death. But in such a situation, the extend of force to exercise right of private defence cannot be measured in a golden scale. Therefore, infliction of the injuries itself were in exercise of the right of private defence. 10. 9. Of course, those two injuries were on the vital part of the body and were so grievous to cause death. But in such a situation, the extend of force to exercise right of private defence cannot be measured in a golden scale. Therefore, infliction of the injuries itself were in exercise of the right of private defence. 10. As rightly contended by the public prosecutor, the assault faced by the accused shall be one which may create apprehension in him about death or grievous hurt, then alone the accused will have the excuse of causing death of his assailant to come either under firstly or secondly of Section 100 IPC to justify the homicide. 11. In this case, as spoken to by both the witnesses, PW-2 hostile witness and PW-3, companion of the deceased, the deceased had slapped on the face of the appellant/accused and pushed him down. The appellant had fallen down. It was thereafter the appellant got up and immediately inflicted two injuries in succession. When a person had been thus kicked down, what would be his apprehension is not beyond imagination. He will certainly have reasonable apprehension of death. Perhaps further assault may be a stamp on his body. Not only that, any further assault may cause grievous injuries. So, this case squarely comes within Firstly or Secondly of Section 100. 12. There need not always a deadly weapon in the hands of the assailant of the accused to come within the Firstly or Secondly of Section 100. As the accused/appellant had been pushed down after slapping on his face, necessarily, this is a case where he could have, in any circumstance, reasonably apprehended further assault resulting in grievous hurt or even apprehended death. So, this is a case squarely coming under Section 100, based on totally of the evidence available on record. Consequently, the conviction shall have to be interfered with. 13. I, therefore, set aside the conviction. I find that the accused is entitled to protection available under Section 100 IPC. He is acquitted of all the charges leveled against him. The appeal is allowed as above. Bail bond is cancelled.