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2014 DIGILAW 553 (KAR)

STATE OF KARNATAKA v. KRISHNAMURTHY

2014-06-04

C.R.KUMARASWAMY, MOHAN M.SHANTANAGOUDAR

body2014
JUDGMENT This appeal is preferred by the State against the judgment and order of acquittal passed by the Prl. Sessions Judge, Bangalore Rural District, Bangalore in Sessions Case Nos.41/2004 and 3/2006, dated: 11.09.2008. 2. All the five accused/respondents were charged for the offences punishable under Section 147 read with 149, 302 read with 149, 307 read with 149, 114 read with 149 of IPC. 3. Case of the prosecution in brief is that, deceased is the elder brother of accused Nos.1 to 3; accused No.4 is the father of the deceased and accused Nos.1 to 3; accused No.5 is the younger brother of the accused No.4 i.e., uncle of the deceased and accused Nos.1 to 3. Partition had taken place between the family members. Agricultural lands were being enjoyed by the parties separately as per the partition. However, one jackfruit tree and a bore well was kept joint among the brothers and the same are to be enjoyed by the brothers jointly. In the evening of 04.05.2003, accused No.1 scolded the wife of the deceased on the ground that the son of the deceased had plucked the raw jackfruit from the jackfruit trees; accused No.1 was of the view that the raw jackfruit cannot be used by anybody. At that point of time, the deceased was not in station, he had gone to Bangalore for attending certain Samavesha/Rally. He came to the village at about 10 PM and went to his house; he was informed by his wife about the incident of scolding by accused No.1 in the matter of plucking the raw jackfruit; thereafter, the deceased went to the temple where there was scuffle between the deceased and accused Nos. 1 and 2 at about 10 PM or so; the deceased returned to the house; thereafter, all the accused came in a group armed with deadly weapons like chopper and knife, entered the house of the deceased and assaulted him repeatedly; the complaint discloses the specific overtacts against the accused Nos. 1 and 2 at about 10 PM or so; the deceased returned to the house; thereafter, all the accused came in a group armed with deadly weapons like chopper and knife, entered the house of the deceased and assaulted him repeatedly; the complaint discloses the specific overtacts against the accused Nos. 1 to 3; however, accused Nos.4 and 5 instigated the accused Nos.1 to 3 by remaining behind the scene; because of the injuries sustained, the deceased died on the spot; when his wife (PW1) tried to intervene, she was also assaulted by the accused Nos.1 to 3 with chopper, consequently, she also sustained grievous injuries; she requested persons who had come to the village for wedding ceremony for medical help and two of them took her to her parent’s place namely Somashettyhalli, Gouribidanur Taluk, on a two wheeler; her father namely Thimmaiah (PW13) took her to Govt. Hospital, Gouribidanur for treatment; while she was taking treatment at Gouribidanur Hospital, SubInspector of Police (PW26) came to the hospital and recorded the statement of PW1 and registered a case in Crime No. 37/2003 in Thyamagondlu Police Station. After completion of the investigation, charge sheet came to be filed for the aforementioned offences against all the five accused. 4. During the course of trial, the prosecution in all, examined 26 witnesses and got marked 27 exhibits and 19 MOs. On behalf of the defence, two witnesses were examined including accused No.1 and got marked 5 exhibits. The trial Court on evaluation of materials on record and after hearing, concluded that the prosecution has not proved its case beyond reasonable doubt. Consequently, acquitted the accused. Being aggrieved by the judgment of the trial Court, the State has preferred this appeal. 5. PW1 is the complainant (wife of the deceased), she is an injured eyewitness; her complaint is at Ex.P1 and the same was registered at about 10 AM on 05.05.2003. At the time of recording of the complaint, PW24doctor was present. As aforementioned, PW1 was taken to Govt. Hospital, Gouribidanur, wherein PW1 took treatment as an inpatient. PW2 is the son of the deceased and he is stated to be an eyewitness. PW3 is the mother of PW1, who took PW1 to the hospital after PW1 came to her parental house on the early hours of 05.05.2003. As aforementioned, PW1 was taken to Govt. Hospital, Gouribidanur, wherein PW1 took treatment as an inpatient. PW2 is the son of the deceased and he is stated to be an eyewitness. PW3 is the mother of PW1, who took PW1 to the hospital after PW1 came to her parental house on the early hours of 05.05.2003. PWs4 and 5 have turned hostile and their evidence is of no use either to the case of the prosecution or to the defence. PW6 Hanumantharayappa speaks about the incident which has taken place at Anjaneya Temple at about 10 PM on 04.05.2003, wherein the deceased had come with chopper with an intention to assault the accused No.1; at that point of time, accused No.2 intervened and he sustained certain injuries. PW7 is the grand mother of PW1, she is stated to be an eyewitness. PW8 is the Archaka of the temple; the said day, i.e., 04.05.2003, being the day of Basava Jayanthi, Harikatha was being delivered and marriage of certain person was also arranged in the temple, more than 200 persons had gathered at about 10 PM; he speaks about the incident of 10 PM which had happened at the temple and the injuries sustained by the accused No.2 by the assault of the deceased with chopper. Chopper was snatched from the hands of the deceased and the same was handed over to the PW8; PW8 in turn handed over the same to the Investigating Officer during the course of investigation. PW9 Govindaiah, is the witness for inquest mahazar as well as the scene of the offence mahazar i.e., Exs.P7 and P8 respectively. PW10 K. P. Rajashekaraiah, is the Police constable; he carried the articles to the Forensic Science Laboratory. PWs11 and 12 are the Police Constables who participated in the investigation process by carrying the articles to the Forensic Science Laboratory and by apprehending the accused Nos.4 and 5. PW13 Thimmaiah is the father of PW1; he took PW1 to the Govt. Hospital, Gouribidanur in the early morning of 05.05.2003 for treatment. PW14 Dr. Savitha C.S., conducted post mortem examination over the dead body of Srinivasa Murthy. Post mortem report is at Ex.P10. PW15 is the ASI, who apprehended the accused Nos. 2 to 4 on 15.05.2003. PW16 is the doctor working in Govt. Hospital, Gouribidanur in the early morning of 05.05.2003 for treatment. PW14 Dr. Savitha C.S., conducted post mortem examination over the dead body of Srinivasa Murthy. Post mortem report is at Ex.P10. PW15 is the ASI, who apprehended the accused Nos. 2 to 4 on 15.05.2003. PW16 is the doctor working in Govt. Hospital, Thyamagondlu; she examined and treated the PW1 during the mid night intervening between 04.05.2003 and 05.05.2003 at the first instance; thereafter, PW1 was taken to government hospital, Gouribidanur. Ex.P12 is the wound certificate issued by PW16. PW17 is the doctor, attached in KC General Hospital, Bangalore; he examined and treated accused Nos.1 and 2; MLC extracts are at Exs.P13 and 14. PW18 K. Chandradhara, is the Assistant Engineer; he drew a sketch of the scene of the offence as per Ex.P15. PW19 Narasaih is the Head Constable, who was watching the dead body. PW20 S. Hanumaiah is the Police Constable who carried the FIR to the jurisdictional Court. PWs21, 22 and 23 are the witnesses for the seizure mahazar at Ex.P17; they have turned hostile. PW24 Dr. D. Mallikarjunappa is the doctor who examined the PW1 and issued the wound certificate as per Ex.P19. PW25 D. Palakshaiah is the Investigating Officer, who completed the investigation and laid the charge sheet. PW26 Shankarachar is the SubInspector of Police; he registered the case in Crime No.37/2003 based on the complaint lodged by PW1 in Govt. Hospital, Gouribidanur; he is a Police Inspector attached in Thyamagondlu Police Station. It is relevant to note that Thyamagondlu Police Station is adjoining to the Thyamagondlu Govt. Hospital. However, no complaint came to be lodged by PW1 or anybody before Thyamagondlu Police Station during the midnight intervening between 04.05.2003 and 05.05.2003. 6. On behalf of the defence, DWs1 and 2 examined. DW1 is the accused himself; according to him, it was the deceased, who was the aggressor and came fully prepared with knife and chopper to take away the life of the accused No.1; during that process, PW1 intervened and accidently, blow of the deceased which was intended to be on accused No.1, fell on PW1; in order to save his life, he snatched the knife from the hands of the deceased and stabbed. In effect, the version of the DW1 is that , he has exercised the right of private defence and that he has not exceeded while exercising the right of private defence. DW2 is the independent eyewitness; his version is also on par with the evidence of DW1. It is relevant to note that PW2 (son of the deceased) admits the presence of the DW.2 at the scene of the incident. 7. PWs1, 2 and 7 are stated to be the eyewitnesses to the incident in question. We find, after meticulous perusal of the materials on record, that the presence of PWs2 and 7 near the scene is highly doubtful. However, presence of PW1 cannot be doubted at all, in as much as, she has sustained injury in the scuffle. 8. PW1 has lodged the complaint as per Ex.P1. The complaint discloses that the incident has occurred within the house of the deceased; the complaint further discloses that all the accused Nos.1 to 3 entered the house of the deceased with deadly weapons like chopper and knife and assaulted the deceased mercilessly, consequent upon which, the deceased died on the spot. But in the evidence, PW1 has been given go by to such version relating to the place of the incident. She has deposed that the incident has occurred outside the house that all the accused assaulted the deceased with the deadly weapons like chopper and knife; PW1 (wife of the deceased) tried to intervene and she was also assaulted by accused Nos.1 to 3. Because of such assault, she also sustained certain injuries and immediately, in the midnight intervening between 04.05.2003 and 05.05.2003, she rushed to the Thyamagondlu Govt. Hospital, at the first instance, with the help of two persons who had come to the village for attending the marriage ceremony; thereafter, she was taken to her parental house namely Somashettyhalli, Gouribidanur Taluk, on the two wheeler, wherein her parents i.e., PWs13 and PW3 took her to the Gouribidanur Govt. hospital in the early hours of 05.05.2003. At about 10.15 AM, on 05.05.2003, PW26SubInspector of Police came to the said hospital and recorded the statement given by the PW1; based on her statement, the crime was registered. But the evidence of the Investigation Officer as well as Sub-Inspector of Police, i.e., PWs25 and PW26 totally destroyed the case of the prosecution. At about 10.15 AM, on 05.05.2003, PW26SubInspector of Police came to the said hospital and recorded the statement given by the PW1; based on her statement, the crime was registered. But the evidence of the Investigation Officer as well as Sub-Inspector of Police, i.e., PWs25 and PW26 totally destroyed the case of the prosecution. PW25 in his examinationin chief itself has deposed that on 05.05.2003 at about 1 AM i.e., early hours of 05.05.2003, PW26SubInspector of Police asked the Inspector (PW25) to come to Gorgatta village, where the incident has taken place. Immediately, thereafter both of them went to scene of offence and learnt that the wife of the deceased is also injured and her whereabouts was not known; PW5 directed PW26 to find out PW1 and to record her statement; HC 486 was directed to guard the dead body of Srinivasamurthy; thereafter, PW25 got wireless message that PW1 is taking treatment at Gouribidanur Govt. Hospital, at about 7 AM and consequently, PW26 was sent to record her statement to the hospital. Thus, it is clear that information was already received at about 1 AM on 05.05.2003 by PW25 and PW26, who are the responsible Police Officers. Curiously, no attempt was made to register the crime at 1 A.M. on 05.05.2003. In the cross-examination, PW25 further admits that at about 0030 hours i.e., midnight intervening between 04-05-2003 and 05-05-2003, he received the information regarding the incident and at about 115 or 130 AM on 05-05-2003, he reached Gorgatta village; there were persons present in the spot; he questioned the people as to what has happened and he came to know that it was the quarrel between the brothers; however, the details were not specified. Thus it is clear that PW25 came to the spot at about 1 AM itself on 05.05.2003 and started the investigation into the matter. He had even directed the Head Constable to guard the dead body. Thus, investigation has virtually started at about 1 AM itself on 05.05.2003. Though PW25 enquired with various persons who were standing at the scene of the offence; according to him, he did not try to record their statements and register the case. He would have suomotoregistered the case also, but such procedure is not adopted. 9. Thus, investigation has virtually started at about 1 AM itself on 05.05.2003. Though PW25 enquired with various persons who were standing at the scene of the offence; according to him, he did not try to record their statements and register the case. He would have suomotoregistered the case also, but such procedure is not adopted. 9. The evidence of PW25 that he had reached the spot at about 1 AM on being informed by SubInspector of Police (PW 26) is further corroborated by the evidence of PW26/SubInspector of Police. PW26 SubInspector of Police admits in his crossexamination that he has informed to PW25 at about 1 AM on 05.05.2003 about murder at Gorgatta Village. He visited the scene of the offence at Gorgatta village after sending a message to the Inspector of Police. Body was lying on the road from Gorgatta village to the house of Govindappa in a halla i.e., adjoining the pathway leading to the house of Govindappa. When he reached the spot, there was no person present near the dead body. According to him, after staying for 20 minutes near the dead body, he went to the village and it was about 330 AM; he enquired with the villagers about the incident but he did not remember the names of those witnesses. He did not record the statement of any of the witnesses and he was searching for the complainant as he wanted to receive the complaint from PW1. From the aforementioned, it is amply clear that the earlier information as received by PWs 25 and 26, on 05.05.2003 at about 1 AM is suppressed by the Police. There is no reason as to why the police did not record statement of any of the persons who were present on the spot at 1AM and register the case. Without even registering the case, strongly the investigation has been started by PWs 25 and 26. Wherefore, we are of the view that origin and genesis of the crime is suppressed by the prosecution. Since the origin and genesis of the crime is shrouded with mystery, it may be difficult for the Court to believe the version of the prosecution including the version of the eyewitnesses. 10. At this stage itself, we may refer to the evidence of DWs1 and 2 on the question of incident. Since the origin and genesis of the crime is shrouded with mystery, it may be difficult for the Court to believe the version of the prosecution including the version of the eyewitnesses. 10. At this stage itself, we may refer to the evidence of DWs1 and 2 on the question of incident. DW2 is the independent eyewitness to the incident and he is a tailor by profession. He is neither foe nor friend of the accused or deceased. He has deposed that at about 10 PM, he along with his father and very many people had gathered in the temple to hear Harikatha; at that point of time, they heard cries of the deceased Srinivasamurthy calling accused No.1 for 56 times in a high tone; accused No.1 who was hearing Harikatha got up and responded to his brother’s voice stating that he was there itself. Then deceased scolded the accused No.1 with filthy language. Immediately, thereafter, the deceased removed the chopper from the backside of his shirt and lifted right hand along with chopper aiming to kill accused No.1. Then, the accused No.2 raised his right hand and stopped the intended blow by obstructing the intended blow, consequent upon which, the accused No.2 sustained certain injuries. All the persons who had gathered, caught hold of the deceased, snatched the chopper and gave it to PW8 (Archaka); thereafter, the accused Nos.1 and 2 started to go to their house. At that point of time, the deceased once again took a brick from heap of bricks and threw it against accused No.1, which fell on the leg of the accused No.1. When the accused No.1 was trying to get up, another brick piece was thrown by the deceased and the brick hit accused No.1 and injured his left part of the ear; the ear of accused No.1 started bleeding; when the people started gathering, the deceased ran away from the said spot, while going, the deceased proclaimed that he will not leave his brothers (accused Nos. 1 and 2); immediately, thereafter, the deceased went to the house and brought a knife. 1 and 2); immediately, thereafter, the deceased went to the house and brought a knife. Along with the deceased, his wife came behind him and she started to request her husband that he should not assault anybody; however, the deceased tried to give a blow with knife on to the stomach of the accused No.1; in this process, PW1 came in between, hence, the blow fell on the back of PW1 and immediately thereafter, accused No.2 caught hold of the deceased. The accused No.1 snatched the knife from the deceased. But, the deceased once again ran to his house and brought the chopper from his house; when the deceased wanted to take away the life of the accused No.1, the accused No.1 using the knife snatched by him earlier gave 23 blows on the stomach of the deceased; thereafter, accused Nos.1 and 2 went away from the spot, consequent upon which the deceased died on the spot. DW2 has further deposed that he went to the house of Somanna and informed the police over phone as to how and where the incident has taken place; immediately, at about 1.30 or 2.00 AM, the police reached there. PWs25 and 26 came to the spot and they also asked about the incident. DW2 gave entire happenings to PWs25 and 26. According to DW2, his statement was recorded and signature was also taken; however, no such signed statement is forthcoming on record. DW.1 has deposed on par with the evidence of DW2, relating to the incidents. 11. From the aforementioned facts, it is clear that the Police knew very well about the incident at about 1 AM; despite the same, no crime was registered till PW1 gave her statement on 05.05.2003 at about 10:15 AM in the Government Hospital, Gouribidanur. 12. There was no valid reason as to why the independent senior Police officials like PW.25 and PW.26 should suppress such important material which was in their knowledge; they would have immediately registered the complaint at 1 a.m. itself. Per contra, they have proceeded to investigate the matter without registering the crime. Therefore, the defence counsel is justified in arguing that the statement as given by the DW2 is deliberately suppressed by the police. Per contra, they have proceeded to investigate the matter without registering the crime. Therefore, the defence counsel is justified in arguing that the statement as given by the DW2 is deliberately suppressed by the police. In view of the same, as aforementioned, we are of the clear view that the origin and genesis of the case of the prosecution is shrouded with mystery and is deliberately suppressed by the police. 13. Though PW2 (Son of deceased) claims to be the eyewitness to the incident in question, his statement is not recorded by the Police during night intervening between 4.5.2003 and 5.5.2003 despite the fact that he was present in the village that too in his house all through the night. The Investigating Officer, as aforementioned has visited the village and the house of PW1 to record her statement during the midnight intervening between 4.5.2003 and 5.5.2003 and verified about the incident from all the villagers. There is no reason as to why the Investigating Officer has not recorded the statement of PW2, if PW2 was to be the real eyewitness to the incident. His statement was recorded by the Police only on 6.6.2003 i.e., after the lapse of about one month of the incident. Absolutely no valid reason or explanation is forthcoming as to why his statement is recorded belatedly. Moreover the conduct of PW2 in keeping quite in the house also appears to be highly unnatural. The evidence of PW2 reveals that when he was sleeping in the house in the night of 4.5.2003, he heard the cries of his mother as ‘BidroBidro’at about 11 p.m.; then when he came out of the house, he saw Accused No.1 dragging his mother. PW2 has further deposed that Accused No.1 gave a blow and the said blow fell on the back of PW1. He has not witnessed the assault on his father. He has come to the spot subsequent to the incident of assault on the deceased. He has seen only the assault on his mother. According to PW1, the assault on PW1 is simultaneous with the assault on the deceased. If PW2 were to be the eye witness to the incident of assault on PW1, he would not have missed to witness the assault on the deceased. Thus it appears PW2 is the got up witness. 14. According to PW1, the assault on PW1 is simultaneous with the assault on the deceased. If PW2 were to be the eye witness to the incident of assault on PW1, he would not have missed to witness the assault on the deceased. Thus it appears PW2 is the got up witness. 14. So also we do not find any ground to believe the evidence of PW7 who was aged about 80 years. She is the grandmother of PW1. According to her, she has seen Accused No.5 instigating the other accused and Accused Nos.1 to 3 assaulting the deceased with the weapons. At that point of time, she was standing near the bushes/fencing and she did not raise hue and cry. The incident had occurred in between the temple and the house of the deceased as well as the accused. More than 200 people had gathered in the temple for hearing Harikathaand for attending the marriage conducted in the temple. She did not raise hue and cry to drag the attention of the public. None of the independent witnesses are examined. Per contra, the independent witness DW2 has deposed against the case of the prosecution. 15. PW.6 in the examination-in-chief, has deposed that he heard galatafrom the temple and hence he went near the temple; he saw deceased, accused Nos.1 and 2 and they were quarrelling; the deceased was asking accused No.1 as to why accused No.1 scolded PW.1; accused No.1 replied that he did not scold; however, he stated that the son of the deceased has removed the jackfruit. PW.6 admitted in the examination-in-chief itself that the deceased removed chopper from his shirt and that at that point of time accused No.2 tried to avoid the attack by the deceased; in the said process, accused No.2 received injury on his little finger of the right hand and parietal region, blood starting oozing; then PW.6, Narasappa, Bhadrachar and Accused No.2 caught the chopper possessed by deceased tightly and snatched the same from the deceased and gave it to Archaka (PW.8). The defence version is supported by the prosecution witnesses, even in examination-in-chief. In the cross-examination, PW.6 further admitted that at about 2.00 a.m. Thyamagondalu police reached the place where the dead body had fallen; the police verified and enquired with PW.6 and others who had gathered there namely, Gurumurthy and Narasappa and recorded their statements. The defence version is supported by the prosecution witnesses, even in examination-in-chief. In the cross-examination, PW.6 further admitted that at about 2.00 a.m. Thyamagondalu police reached the place where the dead body had fallen; the police verified and enquired with PW.6 and others who had gathered there namely, Gurumurthy and Narasappa and recorded their statements. After recording the statements, the police went away from the said place at 3.30 a.m. The police have also recorded the features of the land where the dead body was found; there were blood stained knife and a chopper; the police carried the said chopper and knife along with them. From the aforementioned deposition of PW.6, it is amply clear that the deceased started quarrelling and he was the aggressor. He tried to take away the life of accused No.1 in the temple at 9.00 p.m. on the date of incident. However, accused No.1 was rescued by PW.6, Accused No.2, Narasappa and Bhadrachar who had gathered in the temple. The chopper was snatched from the deceased by PWs.2 and 6 and was handed over to PW.8Archaka. It is also amply clear from the evidence of PW.6 that the police had come in the midnight intervening between 4.5.2003 and 5.5.2003 (i.e., about 2.00 a.m. on 5.5.2003), enquired with the people who had gathered there and recorded their statements; the police have also recorded the features of the land where the dead body was found and took away chopper and knife along with them. Hence, the investigation had already started in the midnight intervening 4.5.2003 and 5.5.2003 itself, i.e., even prior to Ex.P1complaint came to be recorded. These facts fully support the defence version. Therefore, we are of the opinion that the version of the defence is believable, inasmuch as the defence was fully supported by the prosecution witness themselves. 16. PW.8, the Archaka of the temple also has deposed that when the pooja was being performed in the temple at about 10 p.m., there was hue and cry and at that point of time, the chopper which was in the hand of the deceased was snatched by the people who had gathered there and was given to PW.8; PW.8 in turn handed over the chopper to Investigating Officer after 15 to 20 days. In the cross-examination, PW.8 has admitted that there were about 200 to 300 people near the temple on the said day; he saw the chopper when it was in the hands of the deceased. The deceased taking the chopper in his hand tried to assault accused No1 and at that point of time accused No.2 went and tried to avoid the assault on accused No.1 and in that process the right hand of accused No.2 was injured; Gurumurthy, CW.2, Hanumanrayappa, Narasappa, Bhadrachar, Kumarachar and several others were present; they caught hold the deceased and snatched the chopper from his hand. The evidence of PW.8 also fully supports the defence version to the effect that it was the deceased who started the quarrel and tried to take away the life of accused No.1 However, accused No.1 was rescued by the people including PW.2 who had gathered there. The chopper was snatched from the hands of the deceased and the same was handed over to PW.8, who in turn handed over the same to the Investigating Officer. 17. It is relevant to note that PWs.6 and 8 have fully supported the case of the defence version not only in the cross-examination, but also in examination-in-chief itself. They were not treated as hostile witnesses. The prosecution has accepted their evidence as it is. Hence, we are of the clear opinion that the prosecution has suppressed the real incident and has come out with created story by concocting the complaint at Ex.P1. 18. At the first instance, the injured was taken to Thyamagondlu Government Hospital on the way to her parents place. She was examined by the doctorPW.16 in the said hospital. The evidence of PW.16 clarifies that the injured complainantPW1 was brought to the hospital by one Smt.Hanumakka (neighbour of the injured) with the history of assault by Krishnamurthy (accused No.1) and others with knife on 4.5.2003 at about 11.00 p.m.; the injured had sustained incised wound on the right side of the back measuring 1.5”x1” below the right scapula. She was given firstaid treatment and referred to major hospital. The wound certificate of the injured is at Ex.P12. From the aforementioned evidence of PW.16, it is clear that the injured had sustained one injury at the back and she was initially brought to Thyamagondlu Hospital which is about 3 kms. from the place of the incident. She was given firstaid treatment and referred to major hospital. The wound certificate of the injured is at Ex.P12. From the aforementioned evidence of PW.16, it is clear that the injured had sustained one injury at the back and she was initially brought to Thyamagondlu Hospital which is about 3 kms. from the place of the incident. The doctor further admits that it was a medico legal case and that she had intimated about the injuries sustained by the injured to Thyamagondlu Police after examining PW.1injured. Thus, it is more than clear that Thyamagondlu Police was already informed immediately after the incident at about 11.00 p.m. on 4.5.2003 by PW.16. The material on record also reveals that Thyamagondlu Police Station and Thyamagondlu Primary Health Centre are situated in Thyamagondlu Village itself. 19. In view of the same, we are of the clear opinion that the evidence of PWs.6, 8 and 16 fully supports the defence version on various points including the point that the deceased was the aggressor and he wanted to take away the life of accused No.1 at 10.00 p.m. in the temple (vide evidence of PWs.6 and 8); that the police were informed not only by the public at large, but also by the doctorPW.16, since it was a medicolegal case. The police have visited the scene of offence on the mid night intervening between 4.5.2003 and 5.5.2003 itself and recorded the statements of PW.6 and others and started conducting the investigation by carrying the weapons found on the scene of offence (vide evidence of PWs.6 and 16). But such statements and seizure aspects are suppressed by the prosecution, obviously with a view to suppress the real case. 20. Having regard to the totality of facts and circumstances and the discussion made supra, we are of the opinion that the case as putforth by the prosecution cannot be believed. 21. However, the defence has specifically come out with the case that it was Accused No.1 who stabbed the deceased 2 to 3 times since the deceased tried to take away the life of Accused No.1. The material on record, more particularly the evidence of the defence reveals that deceased was the aggressor. The deceased went to the temple at the first instance with the chopper in order to assault Accused No.1. The material on record, more particularly the evidence of the defence reveals that deceased was the aggressor. The deceased went to the temple at the first instance with the chopper in order to assault Accused No.1. At that point of time, the villagers who gathered in the temple caught hold of deceased and snatched the chopper from his hands. However in the meanwhile, during the scuffle, the Accused No.2 sustained certain injuries. The deceased being not satisfied, went out of the temple and threw bricks towards Accused No.1, consequent upon which Accused No.1 sustained certain injuries. Once again the deceased came to the spot with the knife and while assaulting Accused No.1, PW1 seems to have intervened and she has sustained certain injuries because of the assault by the deceased. At that point of time, the knife was also snatched from the hands of the deceased by the Accused No.1. Deceased went back to his house and brought back the chopper and tried to assault Accused No.1. At that time, the Accused No.1 said to have stabbed the deceased 2 to 3 times. These incidents have taken place in between 10.00 p.m. and 11.00 p.m. of 4.5.2003 in quick succession. The Postmortem report reveals three stab injuries on the person of the deceased; rest of the injuries are lacerations. Thus the medical records also support the version of the defence. 22. Absolutely no material is forthcoming as against Accused Nos.2 to 5. The only allegation against Accused Nos.4 and 5 is that they were instigating the other accused being behind the scene. The material on record is not sufficient to conclude that Accused Nos.2 and 3 also participated in the scuffle. Per contra, the material on record clearly reveals that Accused No.1 alone participated and he exercised his right of private defence. 23. The submission of the learned Addl. SPP that the Accused No.1 has exceeded his right of private defence, also cannot be accepted. Having regard to the repeated attempts made by the deceased in between about 10.00 p.m. and 11.00 p.m. on three occasions, the Accused No.1 must have been frustrated and enraged and immediately on coming to know that his life would not be spared, he must have at the spur of the moment without premeditation, stabbed the deceased with the knife on 23 occasions in order to save his life. 24. 24. A person exercising right of private defence cannot weigh in golden scales, in the spur of the moment and in the heat of passion, the number of injuries required to avert further threat to the person and properties, that too during night when the threat came from a person who wanted to take away the life of the accused. In such moment of excitement and disturbed mental equilibrium, it is often difficult to expect the parties to preserve composure and use only so much force in retaliation commensurate with the danger apprehended. Such situations have to be pragmatically viewed and not with high powered spectacles or microscopes to detect marginal overstepping. Due weightage has to be given to 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 reactions and conduct where self preservation is the paramount consideration. It is condition precedent before a plea of self defence can be upheld that the threat must be real, that the threat must be grave, that the threat must be present at the point of time when the accused retaliated and lastly that it must be established that the accused had not tried to take undue advantage of the situation by hitting back in a manner that the law does not permit. The apprehension that the law contemplates under this head of defence is a mental spate namely a fear psychosis that is generated in the mind of the accused which in turn triggers off the retaliatory action which is essentially defensive and not offensive. The few limitations on the right of private defence of person or property are: (a) that there is sufficient time for recourse to public authorities, the right is not available; (b) that more harm than that is necessary should not be caused; and (c) that there must be reasonable apprehension of death or grievous hurt or hurt to the person or damage to the property concerned {see Puran Singh vs. State of Punjab, 1975 Crl.LJ 1479 (SC)}. 25. Exception 2 to Section 300 of IPC provides for the case of a person who exceeds right of private defence. The question in this matter is as to whether the Accused No.1 exceeded the right of private defence ? 25. Exception 2 to Section 300 of IPC provides for the case of a person who exceeds right of private defence. The question in this matter is as to whether the Accused No.1 exceeded the right of private defence ? There cannot be any dispute that the right of private defence shall be exercised in good faith and that the act is done without premeditation. Whether the harm done by the accused is commensurate with the necessity of the accused giving right of self defence, is a question which is to be decided. In this context, the provisions of Sections 96 to 102 of IPC may have to be looked into. Under Section 96 of IPC nothing is an offence which is done in the exercise of the right of private defence. As held by the Apex Court in the case of Jaidev{1963(1) Crl.LJ 495(SC)} in India there is no rule which expects a man first to run away or atleast try to do so before he can exercise his right of private defence; Rather he has every right to stand his own ground and defend himself if there is no time to have recourse to official help; Law does not expect a citizen to be a rank coward and leave his own house at the mercy of the accused. Section 97 of IPC contemplates that every person has a right, subject to the restrictions contained in Section 99, to defend his own body, and the body of any other person, against any offence affecting the human body. Secondly every person has a right to defend the property, whether movable or immovable, of himself or of any other person. Section 98 of IPC deals with the right of private defence against that act of a person of unsound mind, etc. Section 99 of IPC testifies the limitation within which the right of private defence be exercised. It applies when a public servant is acting in good faith under the shield of his office, though the particular act may not be justified by law. The public servant should not act outside the scope of his powers. The right cannot be lawfully exercised when there is time to have recourse to the protection of public authorities. While exercising the right of private defence, one should not inflict, more harm than it is necessary to inflict for the purpose of defence. The public servant should not act outside the scope of his powers. The right cannot be lawfully exercised when there is time to have recourse to the protection of public authorities. While exercising the right of private defence, one should not inflict, more harm than it is necessary to inflict for the purpose of defence. Section 100 of IPC testifies as to when the right of private defence of the body extends to causing death. The right of private defence of the body extends subject to the restrictions mentioned supra and 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 descriptions mentioned below: a. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; b. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; c. An assault with the intention of committing rape; d. An assault with the intention of gratifying unnatural lust; e. An assault with the intention of kidnapping or abducting; f. An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. Section 101 of IPC states as to when the right of private defence extends to causing any harm other than death. Section 102 of IPC states 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 threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues. Sections 103 to 106 of IPC also deal with other aspects of right of private defence. However, they may not be relevant for the purposes of this matter. 26. From the aforementioned discussion, it is clear that the apprehension in the mind of the accused must be reasonable and the violence inflicted must not be greater than is reasonably necessary for the purpose of self defence. If there is sufficient time for recourse to public authorities, the right is not available. 26. From the aforementioned discussion, it is clear that the apprehension in the mind of the accused must be reasonable and the violence inflicted must not be greater than is reasonably necessary for the purpose of self defence. If there is sufficient time for recourse to public authorities, the right is not available. There must be reasonable apprehension of death or grievous hurt or hurt to the person or damage to the property concerned. So long as the danger to the body lasts, the right of private defence continues. Reasonable ground for apprehension is necessary. 27. Having regard to the totality of facts and circumstances of this case, in our considered opinion, the provisions of Section 100 of IPC are squarely applicable to the facts of this case. The attempts were made to take away the life of Accused No.1 by the deceased on three occasions i.e., one in temple and at the second time on the way to the house by wielding the knife and thirdly at the scene of offence when the deceased tried to assault with the chopper. At the first instance, the attempt was made with the chopper, but the same was snatched by the public. In the second attempt by the deceased, the knife was snatched by Accused No.1 in order to save his life. Being dissatisfied with the said two attempts, the deceased once again gone back to his house and brought chopper in order to take away the life of Accused No.1. At that point of time, suddenly without premeditation, the Accused No.1 in order to save his life, stabbed three times on the stomach of the deceased. 28. In the matter on hand, the threat on Accused No.1 was real and grave. Threat on Accused No.1 was very much present at the time of the incident in question i.e., when the accused retaliated. The Accused No.1 has not tried to take undue advantage of the situation by hitting back in the manner which the law does not permit. The deceased was armed with chopper and he was said to have come to the spot to take away life of Accused No.1. At that point of time, the Accused No.1 in order to save his life must have hit back on the deceased by exercising his right of private defence. The deceased was armed with chopper and he was said to have come to the spot to take away life of Accused No.1. At that point of time, the Accused No.1 in order to save his life must have hit back on the deceased by exercising his right of private defence. Having regard to the totality of the facts and circumstances of the case, in our considered opinion, the Accused No.1 has not exceeded in exercising his right of private defence. Since Accused No.1 has not exceeded his right of private defence, the trial Court is justified in acquitting the accused. 29. Strangely, as aforementioned, the complainant though in her complaint has stated that the accident has taken place in her house, later she has come out with a different version that the accident has occurred outside the house. The incident in question is not just outside the house, but it is 80 feet away from the house. The spot of the incident is in between the temple and the house. Thus the prosecution has not only suppressed the original genesis of the case, but also suppressed the scene of offence. In view of the above, we are of the opinion that the order of acquittal passed by the Court below is just and proper. This being the appeal against the Judgment and Order of acquittal, this Court would be slow in interfering in the judgment of acquittal, even if the second view is possible under the facts and circumstances. We find that the view taken by the trial Court is one of the plausible views under the facts and circumstances of the case. Hence no interference is called for.