Research › Search › Judgment

Kerala High Court · body

2004 DIGILAW 412 (KER)

Samuel v. State of Kerala

2004-08-24

K.A.ABDUL GAFOOR

body2004
Judgment :- Appellant is accused No.1 in SC. No.262/95 on the file of the Second Additional Sessions Judge, Kollam. He has been along with his wife and a relative, accused Nos. 2 and 3, charged for the offence punishable under Sections 341 and 302 read with Section 34 IPC. Relying on the evidence of PWS.2 and 3, the occurrence witnesses the court below giving him the benefit of exception No.4 to section 300, convicted him for the offence punishable under Part-I of Section 304 IPC and was sentenced to undergo rigorous imprisonment for a term of 10 Years and to pay compensation of Rs.75,000/- with default sentence of imprisonment for 4 years. Therefore this appeal. Accused Nos. 2 and 3 had been acquitted. 2. The incident occurred at about 1.30 p.m. on 8.6.1995, almost in front of the house of the appellant/accused. The incident is not disputed. The attempt of the appellant is to get the shield of sections 100 and 103 IPC, the right of private deference of person as well as property. Ext.D1 would certificate issued by DW1 in respect of the injury sustained by the accused, which is produced by the prosecution as Ext.P17, is projected to sustain the plea of the right of private defence. DW1 was the doctor who attended the accused when he was admitted in the hospital consequent on the injury sustained on his left fore arm. There were two injuries apart from one minor aberration. These had been found to be clear cut injuries by DW1, which could be inflicted by MO.4 chooper. This injury of the accused has not been properly explained by the prosecution. Thus the real occurrence was not revealed to the court. This unexplained injury itself is sufficient for the accused to plead right of private defence. The court below failed to consider this plea discernible from the materials on record including through the deposition of PW2 and PW3 and the defence case put forward through the statement under section 313 Criminal Procedure Code. That the accused had taken the plea of right of private defence is evidence from the discussion in para 43 of the judgment wherein the court below had come to a conclusion that he had exceeded the right of private defence. That the accused had taken the plea of right of private defence is evidence from the discussion in para 43 of the judgment wherein the court below had come to a conclusion that he had exceeded the right of private defence. In such circumstances there was no reason for the court below to convict him under Section 304 part I. This is not a case within the fold of exception No.4 to section 300 IPC. If the right of private defence has been exceeded, the case ought to have been placed within exception No.2 of Section 300 IPC. It is further submitted that the evidence given by the alleged occurrence witnesses PWs.2 and 3 is not sufficient enough to repose confidence in court. They are interested witnesses. So on any count, the court below ought to have accepted the case of the accused and would have found that the alleged homicide was justified by reason of the exercise of right of private defence. 3. The prosecution, as spoken to by PWs.2 and 3 reveals that at about noon on the date of occurrence, the deceased had come to the place of occurrence and he noticed certain fencing put up obstructing the pathway alleged to be there leading to his property. Finding this, with a chopper in his hands he tried to cut and remove the fencing and reached up to the compound of the accused. At that time accused No.2, the wife of the appellant shouted that the deceased was distroying the fence. Accused No.3 a relative came there. He caught hold of the chopper from the hands of the deceased. Both of them caught hold of the hands of the deceased. At that time accused No.1, the appellant, came from inside the house with Mo.6 weapon in his hands and inflicted stab injury on the chest of the deceased John. Receiving this injury, as spoken to by PWs.2 and 3, he attempted to sit down, covering his hand on the wound. At that time the appellant/accused, standing that he need not come again after filing case against them, inflicted one more stab injury on the abdominal portion. Thereafter all the accused went inside their house. PW2, went to the school where PW1, the wife of the deceased was working and PW4 took the injured to the hospital after PW1 had reached the spot. 4. Thereafter all the accused went inside their house. PW2, went to the school where PW1, the wife of the deceased was working and PW4 took the injured to the hospital after PW1 had reached the spot. 4. By the time he reached the hospital, he had breathed his last as certified by PW6, the doctor who attended him. PW7 conducted post mortem examination and issued Ext.P4 certificate. The reason for death has been attributed to bleading and shock resulting from the injury sustained. 5. Appreciating the evidence on record, including the version given by PWs.2 and 3, the occurrence witnesses, the court below found that the injuries which caused the death have been inflicted by the appellant/accused out of sudden and grave provocation and convicted and sentenced as aforesaid. 6. As the incident is admitted by the appellant, the only question to be looked into in this case is whether the accused can be said to be justified in inflicting those injuries in exercise of his right of private defence of property and of person. First of all I should consider the first aspect namely the right of exercise of private defence in respect of the property. 7. Section 103 IPC provides the situations where exercise of the right of private defence of property extends to causing death. True as revealed in the prosecution case, the deceased had been destroying certain fences said to be put up by the accused. It is said to be put up within two weeks. It is said to be put up obstructing the pathway to reach the property of the deceased. Even going by the case of the prosecution there was a chopper in the hands of the deceased with which he had been cutting and removing the fence. The prosecution case further reveals that he had come, continuing that act, up to the boundary of the property of the accused/appellant. The accused/appellant was not at the boundary at that time, He had been inside the house. Of course, if boundary set up by him was destroyed, he did have the right to resist. 8. But in order to resist so and to avert such threat to the property and to cause death of the alleged assailant, any of the offence made mention of in Section 103 IPC ought to have been committed by the alleged assailant, the deceased in this case. 8. But in order to resist so and to avert such threat to the property and to cause death of the alleged assailant, any of the offence made mention of in Section 103 IPC ought to have been committed by the alleged assailant, the deceased in this case. In this case, the alleged situation comes within Fourthly of Section 103 So, in addition commission of such offence should have reasonably caused apprehension of death of grievous hurt. 9. As spoken to by PWs.2 and 3, while the deceased had been cutting away the fences and reaching the boundary of the property of the accused, the appellant/accused No.1 had been inside his house. Only accused Nos.2 and 3 were outside the house. Necessarily, so far as the appellant/accused No.1 is concerned it does not create any reasonable apprehension of death or grievous hurt and he cannot on the reason that the deceased was destroying the boundary, contend that he did have the right of exercise of private defence even to the extent of causing death of the alleged assailant, deceased in this case. So the right of private defence of property to the extent of causing death did not arise in this case. 10. PW2 is a neighbor. According to him he was watching the incident right from the beginning. At about 1 ‘O’ clock the deceased John came to the spot. He saw the obstruction to the pathway by reason of putting up of a fence. He started to remove the fence with a chopper in his hands and came towards the west. At that time accused No.2, the wife of the appellant was on the court yard of her compound. She shouted to accused No.1 and 3 that the fence newly put up was being destroyed. Accused No.2 came first and approached John. Accused No.3 also came to the deceased John and caught hold of the chopper from the hands of John. Accused No.2 exhorted to kill him. Though there was an attempt to inflict to cut injury by accused No.3 the deceased John just withdrew. So he escaped. He attempted to go to the fence. At that time both accused Nos.2 and 3 caught hold of the hands of the said John. Accused No.2 exhorted to kill him. Though there was an attempt to inflict to cut injury by accused No.3 the deceased John just withdrew. So he escaped. He attempted to go to the fence. At that time both accused Nos.2 and 3 caught hold of the hands of the said John. It was at that time the appellant/accused No.1 with a knife in his hands came from inside the house and inflicted a stab injury on the chest of the deceased John. This is spoken to in same words by PW3 as well who was also a neighbour watching the incident from nearby. PW3 is the brother of PW2. Both of them gave the same description of the incident. 11. Thus when accused No.1 came from inside the house with a knife there was no weapon in the hands of deceased John as it had been snatched away by accused No.3 So accused No.1 could not have apprehended, reasonably, any danger to his life or even any grievous hurt, as he had already been disarmed by accused No.3, as spoken to by these two witnesses. More over, both the accused 2 and 3 had caught hold of the hands of the deceased John, thereby even if he had been in possession of any weapon he could not have used it against accused No.1. Therefore there arises, no question of any right of private defence of the person of the accused No.1 in this case. 12. I will also examine the matter in a different angle. One can exercise the right of private defence not only against the person of himself but also against the person of others. Accused Nos. 2 and 3 are his wife and close relative as spoken to by PWs.2 and 3. There was no threat towards accused Nos. 2 and 3 from deceased John. Not only that, even when accused No.3 had attempted to inflict the cut injury, the deceased John had withdrawn and was going near the fence. Therefore, there was no threat to the person of accused Nos.2 and 3 even, for accused No.1 to exercise the right of private defence of person in respect of his wife and relative, accused Nos.2 and 3. 13. Therefore, there was no threat to the person of accused Nos.2 and 3 even, for accused No.1 to exercise the right of private defence of person in respect of his wife and relative, accused Nos.2 and 3. 13. So there arises no question of application of Section 100 IPC as well, as no assault which might reasonably cause apprehension of death of causing of grievous hurt would be the result of any act from the deceased John, so far accused No.1 was concerned. Thus right of private defence of the person is also not available in this case. 14. True there was an injury on the appellant/accused No.1, as is spoken to by DW1 and as is noted in Ext.D1. DW1 had spoken to that when he examined accused No.1, the wound was not bleeding. He had also stated that he did not measure the depth of the injury sustained by the accused. Any how, it was an injury on the middle of left upper arm. Both the occurrence witnesses, PWs.2 and 3 had stated that these injuries had been sustained by the appellant/accused No.1 while he was withdrawing the weapon after inflicting the injury on the chest of the deceased. There was much cross examination to discredit this version given by PWs.2 and 3. There is no reason to disbelieve them. 15. As spoken to by PWs.2 and 3, hearing the noise from accused No.2, accused No.1, the appellant had come from inside the house with the knife in his hands and inflicted a stab injury on the deceased. Therefore this was a clear case of free fight from the hands of accused No.1. 16. As already mentioned above there is clear, cogent and trustworthy and consistent independent versions by the occurrence witnesses. The accused had inflicted first injury on the chest of the deceased. The deceased withdrew and attempted to sit down covering his hands on the wound, as spoken to by PWs.2 and 3. At that moment, the accused/appellant again shouting that whether he was there to institute false case against him any more caused injury on the abdomen of the deceased. The deceased withdrew and attempted to sit down covering his hands on the wound, as spoken to by PWs.2 and 3. At that moment, the accused/appellant again shouting that whether he was there to institute false case against him any more caused injury on the abdomen of the deceased. Necessarily, even if his version that the deceased had attacked him and caused injury and therefore he stopped the deceased is accepted, there was no reason at all for him to again inflicting the second injury, after the deceased had attempted to sit down on getting infliction of the first injury on his chest. 17. Even the Ist injury was inflicted, after the deceased has been disarmed by accused No.3 and when there was no apprehension of death or grievous hurt from the hands of the deceased. The Ist injury inflicted was on chest. So it was with the intention of causing such bodily injury as was likely to cause death, if not with the intention of causing death. Even if he had the right of private defence he had exceeded in this case, in which case also the conviction under Section 304 Part I shall have to be sustained because the injury on the chest or the second injury on the abdomen shall in the ordinary course may cause death to an ordinary person in such situation. Therefore, there is no reason to interfere with the conviction. 18. At the same time, taking into account the fact that the accused is now aged 68 years and the fact that there was also some allegation of destruction of fence by the deceased, I am of the view that there shall not be the maximum punishment provided under Part I of Section 304 IPC. Rigorous imprisonment for a term of 5 years will, in such situation, be sufficient to meet the ends of justice. I ordered so. The compensation awarded by the court below to the tune of Rs.75,000/- is also exorbitant. In his 313 statement the accused has stated that he did not have much properties. He had a daughter to be married away and that he was not rich enough to maintain his family. It is not discernible from the records that the court below had ascertained the financial situation of the accused. In such circumstances, the interest of justice demands interference with the quantum of compensation as well. He had a daughter to be married away and that he was not rich enough to maintain his family. It is not discernible from the records that the court below had ascertained the financial situation of the accused. In such circumstances, the interest of justice demands interference with the quantum of compensation as well. Accordingly, I am of the view that a compensation of Rs.25,000/- will be reasonable. If defaulted, there shall be simple imprisonment for two months. Appeal is allowed in part as above.