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2006 DIGILAW 1444 (AP)

PONGULATI JAYARAJU v. STATE OF A. P.

2006-11-20

GOPALA KRISHNA TAMADA

body2006
( 1 ) THIS Criminal Appeal is directed against the judgment dated 28-7-2000 delivered in s. C. No. 180 of 1997 by the learned Sessions judge, Machilipatnam, whereby, A-1, who is the appellant herein, was convicted of the offence punishable under Section 304-Part-1 i. P. C. and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 100/- in default, to suffer simple imprisonment for one month. He was also convicted of the offence punishable under section 324 I. P. C. and sentenced to undergo rigorous imprisonment for a period of one year. The learned Sessions Judge further observed that the sentence of imprisonment imposed under both the counts should run concurrently. Against the judgment, dated 28-7-2000, the appellant-A-1 has preferred this Criminal appeal. ( 2 ) THE gravamen of the charge framed against the accused is as follows: Firstly: That you A-1, on the 24th day of december, 1996 at 11. 00a. M. infrontof panchayat office at Pedatummidi village, did commit murder by intentionally or knowingly causing the death of Bolla venkata Ramarao, R/o Pedatummidi village, by stabbing him with a knife on his chest and you thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance. Secondly: That A-1 of you at about the same time, place and during the course of the same transaction, committed the offence of murder of Bolla Venkata ramarao by stabbing him with a knife and that A-3 of you abetted A-1 of you in the commission of the offence of murder and by obstructing the supporters of the deceased from going to his rescue while a-1 stabbed Bolla Venkata Ramarao and A-3 of you thereby committed an offence punishable under Section 109 and 302 of the Indian Penal Code ad within my cognizance. Lastly:- That A-1 of you at about the same time, place and during the course of same transaction, voluntarily caused hurt to B. Venkata Rama Rao by stabbing him with a knife which is a dangerous weapon and that you thereby committed an offence punishable under Section 324 of the Indian Penal Code and within my cognizance. ( 3 ) THE case of the prosecution, in brief is that A-1 is a resident of Bapujinagar, Gudivada and A-2 and A-3 are his close associates. ( 3 ) THE case of the prosecution, in brief is that A-1 is a resident of Bapujinagar, Gudivada and A-2 and A-3 are his close associates. The deceased Bolla Venkata Rama Rao, was the resident of Pedathummidi village in Bantumilli mandal. On 3-12-1996, at about 8. 00 p. m. , an altercation took place between the deceased and A-1 near a sweet shop of Purohit Mangali ramu on a petty matter. They beat each other with banana stumps and A-1 threatened the deceased to see his end and since then developed enmity and was waiting for an opportunity to eliminate the deceased. On 24-12-1996, at about 11. 00 a. m. , when the deceased along with his brother Bolla Venkata ram Madhusudhana Rao was going to the panchayat office, A-1 approached him and questioned him about the previous altercation. As a result, a fresh quarrel took place between them wherein, they pushed each other and a-1 fell on the compound wall of the Panchayat office and received an injury on his forehead. Immediately, A-1 grew wild and picked up a knife from the nearby hawker of Jama fruits and attacked the deceased with it. Madhusudharna Rao, Vasantha Rao, Veera brahman, Surendra Babu and Venkateswara rao triedtorescuethe deceased from A-1. In that process Madhusudhana Rao received a knife injury caused by A-1. A-2 and A-3 who were the close relatives of A-1, rushed to the spot and prevented the supporters of the deceased by saying that the dispute could be settled before the elders. Due to the act of a-2 and A-3 the deceased remained all alone. A-1, taking advantage of the situation stabbed him on the left side of the chest causing bleeding injury and the deceased fell down. A-1 to A-3 fled from the scene of offence. When Madhusudhana Rao was carrying the deceased in a car to Bandar for medical aid, the deceased died on the way. The dead body was brought back to his house. Then, madhusudhana Rao filed a compliant before the police, who registered a case against the accused. During the course of investigation the Inspector of Police arrested A-1 on 26-12-1996 and recovered the blood-stained knife in the presence of mediators and also arrested A-2 and A-3 on 29-12-1996. The case against A-2 was abated as he died. After completion of investigation, charge sheet was filed. During the course of investigation the Inspector of Police arrested A-1 on 26-12-1996 and recovered the blood-stained knife in the presence of mediators and also arrested A-2 and A-3 on 29-12-1996. The case against A-2 was abated as he died. After completion of investigation, charge sheet was filed. ( 4 ) THE learned counsel for the appellant has strenuously contended that the Court below ought notto have convicted the appellant-A-1 for the offence punishable under section 304-Part-1 I. P. C. as he was exercising his right of private defence. He has drawn my attention to some of the paras of the judgment recorded by the learned trial Judge and contended that even the learned Judge concluded that the appellant was only exercising the right of private defence, but according to the trial Judge, the appellant exceeded his right of private defence which, in fact, is not correct. According to him, it is not possible for anybody to use that much of right of private defence alone as is required because in a situation like that people will loose control overthe situation. ( 5 ) ON the other hand, the learned Additional public Prosecutor has opposed the said submissions stating that there was no necessity for the appellant to cause such a blow which resulted in the death of the deceased, and according to him, though the charge against the appellant is one under section 302, the Court below rightly acquitted him of the said charge and found him guilty of the offence punishable under Section 304-Part-1 I. P. C. whichfinding needs no interference. ( 6 ) AS stated supra, in all, three persons were charged, but the case against A-2 was abated due to his death and A-3 was acquitted by the trial Court and the appellant alone was convicted of the offences punishable under sections 304-Part I and 324 I. P. C. The learned trial Judge discussed the entire evidence particularly the evidence of the Investigating officer, who was examined as P. W. 17. The evidence of he Doctor (P. W. 15) who examined the appellant, and the evidence of P. Ws. 3 and 5 to 7 clearly shows that the appellant, at the relevant point of time, was exercising his right of private defence. The evidence of he Doctor (P. W. 15) who examined the appellant, and the evidence of P. Ws. 3 and 5 to 7 clearly shows that the appellant, at the relevant point of time, was exercising his right of private defence. When once the very same evidence is looked at, this Court is of the view that the appellant did not exceed the right of private defence. According to P. W. 17 i. e. the investigating Offcer, on 24-12-1996,at 11. 00 a. m. the alleged incident happened and he registered the F. I. R. at 1:30 p. m. and on the same day he sent the appellant for medical treatment as he found several injuries on him. When he questioned, the appellant answered him that an altercation took place between him and the deceased wherein, he received the injuries. It is his further evidence that during the course of his investigation, when he examined some witnesses, they stated that there was scuffle between the appellant and the deceased, whereintheappellant received some bleeding injuries. In fact, the evidence of the investigating Officer and other witnesses is wholly corroborated with the evidence of he doctor, who treated the appellant and issued a wound certificate. According to P. W. 1, the doctor, he found the following injuries on the body of the appellant during the course of his examination. (i) A lacerated injury of size 1" x V4" middle of forehead yellowish brown scab formation present. (ii) An abrasion of size Vz x Vz" over the right side of forehead. Crust formation present. Brown in colours. (iii) An abrasion of size 1" x W transposition back of left shoulder. Crust formation present. (iv) An abrasion of size 1" x 3/4" back of trunk on right side. Crust formation present. Brown in colour. (v) Pain and tenderness above the left wrist joint. No visible injury. (vi) Pain ad tenderness over the back of left knee joint. No visible injury. No doubt, the Doctor opined that the injuries are simple in nature and must have been caused with a blunt object and the duration of injuries was 26 to 48 hours. Brown in colour. (v) Pain and tenderness above the left wrist joint. No visible injury. (vi) Pain ad tenderness over the back of left knee joint. No visible injury. No doubt, the Doctor opined that the injuries are simple in nature and must have been caused with a blunt object and the duration of injuries was 26 to 48 hours. From this, it cannot be inferred that the appellant exceeded his right of private defence for obvious reason that he could not have weighed in golden scales in the heat of the moment the number of injuries required to disarm the deceased, who was armed with iron rod. In fact, it must be borne in mind that the deceased is a native of pedathummidi village (place of offence) where he has strength, whereas the appellant is a stranger to the place and he visited the place in connection with the delivery of his wife. In fact, during the course of his examination under Section 313 Cr. P. C. , when he appellant was questioned, he stated that in connection with the delivery of his wife, he wanted to go to vyaka and for catching a bus he stood near the bus stop. Soon the deceased came to him. Abused him by naming his caste and swore and he would kill him. So saying, the deceased hit on the head of the appellant with an iron rod. Thereafter, healso indiscriminately beat him as a result of which, the appellant fell down by the side of the cart of Jama fruits. However, as the deceased continued to beat the appellant and as his life was under threat, he claimed to have seized the knife found there with an idea of escaping from the deceased and in order to scare him away he waved the knife, but it appears that it hit the deceased. In the meanwhile, according to the appellant, bus came there and he claimed to have gone to Bantumilli police station by that bus and reported the matter to the sub-inspector of police. This clearly leads to an inference that atthe relevant point of time, he was exercising only his right of private defence and even by a stretch of imagination, it cannot be said that he exceeded the right of private defence. This clearly leads to an inference that atthe relevant point of time, he was exercising only his right of private defence and even by a stretch of imagination, it cannot be said that he exceeded the right of private defence. In fact, in a recent judgment reported in v. Subramani v. State of Tamil Nadu the apex Court in identical circumstances held that it is very difficult to maintain mental equilibrium in moments of excitement and it would be apt if the observations made in the said judgment are extracted. "in moments of excitement and disturbed mental equilibrium, it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private defence commences, as soon as the threat becomes so imminent. Such situations have to the pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal over-stepping. Due weightage has to be given and hyper-technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact. "the right of private defence is essentially a defensive right circumscribed by the governing statute i. e. , the I. P. C. , available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repeal unlawful aggression and notas retaliatory measure. While providing for exercise of the right, case has been taken in I. P. C. not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. It is a right of defence, not of retribution, expected to repeal unlawful aggression and notas retaliatory measure. While providing for exercise of the right, case has been taken in I. P. C. not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longersurvived. " Keeping the said principle in mind when the act of waving the knife into air is looked at, it can definitely be inferred that the appellant was exercising his right of private defence only and unexpectedly the knife hit the deceased on vital part such as lung on account of which he died subsequently. ( 7 ) HENCE, this Court is of the view that the court below erred in convicting the appellant of the offence punishable under Sections 304 part-1 and 324 I. P. C. ( 8 ) ACCORDINGLY, the Criminal Appeal is allowed setting aside the judgment impugned. The fine amount, if any, paid by the appellant shall be refunded to him. The bail bonds of the appellant shall stand cancelled.