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2015 DIGILAW 1327 (SC)

K. C. Vanaja v. Kottarom Preman

2015-09-29

PINAKI CHANDRA GHOSE, R.K.AGRAWAL

body2015
ORDER : 1. We have heard the learned counsel appearing for the appellant - victim, learned Amicus Curiae appearing for respondent No.1 - accused and learned counsel appearing for the State of Kerala, at length today. 2. This appeal is directed against the judgment and order dated 9th April, 2010 passed by the High Court of Kerala at Ernakulam in Criminal Appeal No. 395 of 2010, whereby the High Court has allowed the appeal of the accused respondent No.1 and the conviction and sentence imposed on him under Section 302 of the Indian Penal Code was set aside. The High Court mainly allowed the appeal on the ground that the accused is entitled to the right of private defence and on that question the High Court conceded to the accused the right of private defence and allowed the appeal. 3. The facts of the case, briefly stated, are as follows : On 27th January, 2005 at about 5.15 p.m., in front of a tea shop at Thokkilangady Bazar, respondent No.1 and the deceased Santosh entered into a scuffle between them while local men intervened and separated them. Santosh took a granite stone and struck on the head of respondent No.1 and respondent No.1 saved himself by twisting his head. Thereafter, the respondent took out a knife from his pocket and stabbed at the abdomen of Santosh and Santosh succumbed to the stab injuries later at 6.30 p.m. At about 8.10 p.m., PW-1 who was standing in front of tea shop, lodged the first information statement (Ext.P-1) before PW-13 Sub Inspector of Police, who on the basis of the said statement (Ext. P-1) registered Ext. P-1/A FIR. On 28th January, 2005, the Circle Inspector (PW-14) took over the investigation and prepared an Inquest Report (Ext.P-2) and also prepared Scene Mahazar (Ext. P-3) and submitted before the learned Magistrate at about 9.10 a.m. on 28th January, 2005. PW-14 arrested the accused respondent on 2nd February, 2005 and also recovered the knife (M.O.1), confession statement given by the accused (Ext.P4-A), and further recovered M.O.4 and M.O.5 and after the address of the accused respondent was traced, recovered M.O.9 and Plastic Bag under Ext.P9. 4. On 29th September, 2005, the Deputy Superintendent of Police (PW-15) verified the M.Os. recovered during investigation and laid charge against the accused respondent. 4. On 29th September, 2005, the Deputy Superintendent of Police (PW-15) verified the M.Os. recovered during investigation and laid charge against the accused respondent. Further the Deputy Superintendent of Police took investigation from PW-14 on 9th November, 2009 after hearing the prosecution evidence, charge was framed against the accused. When the charge was read over and explained to the accused he pleaded not guilty to the charge and thereafter the prosecution adduced evidence in support of its case. The Additional Sessions Court, Thalassery, after conclusion of the trial, came to the conclusion that the prosecution has successfully proved its case beyond doubt against the respondent accused and held the respondent accused guilty of the offence charged against him and sentenced him to undergo rigorous imprisonment for life for the offence under Section 302 of the Indian Penal Code. Being aggrieved by the aforesaid order of conviction and sentence passed by the Additional Sessions Court, Thalassery, the respondent accused filed an appeal before the High Court of Kerala, being Criminal Appeal No.395 of 2010. The High Court allowed the appeal on 9th April, 2010, within 9 days of filing of the said appeal and after setting aside the conviction and sentence imposed on the respondent accused under Section 302 IPC, on the ground of private defence. Hence, this appeal has been filed by the State by way of special leave. Learned counsel for the parties have placed their respective cases before us today. 5. According to the learned counsel appearing for the State, the High Court has misplaced the appreciation of the statement of the witnesses PWs.1 to 4 which would clearly reveal that the act done by the accused cannot be stated to be an action out of private defence. The High Court has failed further to take note of the fact that the accused did not adduce any evidence from the defence side on the point of grave apprehension of danger to the life and liberty of the accused at the time of commissioning of the offence so as to stop the accused to take the plea of private defence. It is the case of the State that the right of private defence is essentially the defensive right and is available in exceptional circumstances to justify it. It is the case of the State that the right of private defence is essentially the defensive right and is available in exceptional circumstances to justify it. In this case, the deceased pelted a stone against the accused and that passed off without hitting him and thereafter the accused stooped at the bottom of the gate at the door when the deceased was un-armed. It is specifically submitted that no circumstance arose for taking the advantage of the right of private defence. Hence, the benefit of this Section cannot be extended to the respondent accused which has been done wrongly by the High Court in favour of the accused. The High Court has also failed to give any reason or to point out any plausible evidence by the defence to show as to why the accused carried the knife with him. Therefore, without there being proper reasons, the said circumstances in respect of carrying the knife with him by the accused is nothing but perverse. The carrying of the weapons by the respondent accused itself shows the motive clearly. 6. After appreciation of the facts also it appears to us that the High Court has failed to assign any reason to come to such a conclusion. Without appreciating the fact that the right of private defence is available only in exceptional circumstances, could depend upon the evidence, and it is clear from the evidence adduced before the Court and after analyzing the same, it appears to us that the deceased has only pelted a stone and not tried to attack the respondent accused which would have caused a threat to his life. Therefore, the very ingredient of the right of private defence, in our opinion, is not present in the case. Therefore, the reasoning given by the High Court, in our opinion, cannot be accepted. 7. It is also submitted before us on behalf of the State that the High Court could have granted time to prepare the appeal in question. On the contrary, the appeal was filed only on 1st April, 2010 and the same being allowed by the High Court on 9th April, 2010, the State counsel submitted that there was no chance to submit/bring all the records before the High Court at that point of time. On the contrary, the appeal was filed only on 1st April, 2010 and the same being allowed by the High Court on 9th April, 2010, the State counsel submitted that there was no chance to submit/bring all the records before the High Court at that point of time. It is further submitted that a chance should have been granted by the High Court to the State to place the facts before it. In view of that we find that the reasoning given by the High Court to set aside the order passed by the Trial Court, and without given a chance to the State to present their facts before the High Court properly, cannot be accepted at this stage. Learned counsel who appeared on behalf of the complainant also submitted that a chance should be given to ventilate their grievances before the High Court, the learned Amicus Curiae appointed by this Court for respondent No.1 also submitted that the matter may be remanded back to the High Court with a direction to dispose of the same on an early date. 8. After hearing the parties, we find that the reasoning given by the High Court and further that the High Court has disposed of the appeal within a period of 9 days of its filing, and further taking it out of turn without giving a chance to the State would show that the High Court has decided the matter in haste and without assigning any reason to do so. Hence, we think it would be proper for us to set aside the order passed by the High Court and remand the matter back to the High Court with a request to dispose of the same within a period of six months from the date on which all the records reach the High Court. However, we make it clear that the High Court will decide the matter on merits without being influenced by our observations. We order accordingly. This appeal is disposed of in the afore-stated terms. 9. We direct the Registry to take immediate steps to send back all the original records to the High Court for further hearing of the matter at their end. 10. We further record that we have appointed an Amicus Curiae who is also present before us on behalf of respondent No.1 - accused. 9. We direct the Registry to take immediate steps to send back all the original records to the High Court for further hearing of the matter at their end. 10. We further record that we have appointed an Amicus Curiae who is also present before us on behalf of respondent No.1 - accused. Since we have set aside the order of the High Court, all consequences will follow including taking of the accused into custody who was released from custody pursuant to the orders of the High Court. SLP(Crl.) ............. Crl. M.P. No. 19389 of 2012 Delay is condoned. Since the criminal appeal filed by the victim is disposed of, nothing remains in the special leave petition filed by the State and the same is also disposed of on the above terms.