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2022 DIGILAW 458 (TS)

Naveen Kumar Sohiwal v. State of Andhra Pradesh

2022-07-15

K.SURENDER

body2022
JUDGMENT : 1. The appellant was convicted for the offence under Section 304 Part-II IPC on two counts and sentenced to undergo rigorous imprisonment for a period of ten years for causing death of two persons namely Sanoy Cherian and Sanjay Giri (herein after referred to as ‘D1’ and ‘D2’ respectively) who were 3rd year students of Hotel Management, vide judgment dated 01.09.2008 in S.C.No.130 of 2007 passed by the learned Metropolitan Sessions Judge, Hyderabad (for short ‘the learned Sessions Judge’). 2. The appellant/accused is student of first year in Indian Institute of Hotel Management at D.D.Colony, Bagh Amberpet. On 31.07.2006 at about 6.00 p.m, the appellant along with P.W.2, went from college to New Nallakunta and while returning, purchased beer bottle which was noticed by D1, D2 and P.W.19, who questioned the appellant and P.W.2 about consuming beer and bringing disrespect to the institute. While P.W.2 and the appellant were trying to run away, they were forcibly brought to the room in TRT No.104, where the deceased and other seniors were staying on rent. When D2 was enquiring about the incident and threatened to inform the lecturers in the institute, the appellant allegedly took chef knife on the table and stabbed D1, who received bleeding injuries and went out of the gate and fell near gate. One Himanshu Kathuria tried to catch the appellant. However, P.W.19 went out and saw D1 falling near the gate and bleeding profusely. Meanwhile the appellant ran out with blood stains on shirt. P.W.19 went inside and he saw D2 was lying on ground in between two cots with bleeding injuries on chest and shoulder. Accordingly, both the deceased were taken to the hospital, where they were declared dead. 3. P.W.2, who is the friend of the appellant and the appellant were both in the first year. PW2 stated that on the said date, the appellant purchased beer and two senior students, who were D1 and D2 saw them. On seeing them, they started running into lanes. However, those two senior students (D1 and D2) chased and caught hold of P.W.2 and the appellant and took them to the room in TRT No.104. In that room, there were four or five other senior students apart from D1 and D2, who took them inside. Then, both D1 and D2 and other senior students started questioning P.W.2 and the appellant. In that room, there were four or five other senior students apart from D1 and D2, who took them inside. Then, both D1 and D2 and other senior students started questioning P.W.2 and the appellant. P.W.2 was asked to kneel down and remove his shirt, then suddenly, he heard voice from behind and when he turned back, the appellant was holding a knife and did not know who were attacked by the appellant. P.W.2 ran out of the gate and he also saw the appellant coming out of the room with blood stained shirt. D1 was bleeding profusely and fell near the gate and the D2 was found inside the room. 4. The prosecution examined PWs.16, 17 and 19, who were senior students present in the room i.e., TRT No.104, Vidyanagar. P.Ws.16, 17 and 19 and others were tenants in the said room/quarter. They also deposed that they saw the appellant stabbing both the deceased. 5. On the basis of evidence of P.Ws.2, 16, 17 and 19, the learned Sessions Judge found that it was the appellant herein, who had inflicted injuries causing death of D1 and D2, who were senior students. However, found that there was no intention on the part of the appellant to kill the deceased as such the appellant was convicted under Section 304 Part-II of IPC and not under Section 302 of IPC. 6. Learned Senior Counsel N.Ramchander Rao appearing for Sri N.Avaneesh counsel for the appellant submits that this is a case of right to private defence. The appellant had no other way but to defend himself from the seniors, who attacked him, abused him and also made him to kneel down on the floor asking him to take off his shirt and did obscene things. Due to the sudden provocation, the appellant had no other option but to safeguard himself from seniors who are both D1 and D2, P.Ws.16, 17, 19 and others, stabbed the deceased in the self defence. He submits that even according to PW.2, he was also present in the room when senior students along with D1 and D2 were questioning them and asked them to kneel down and remove shirts and the seniors got angry for the reason of the appellant not answering the questions. He submits that even according to PW.2, he was also present in the room when senior students along with D1 and D2 were questioning them and asked them to kneel down and remove shirts and the seniors got angry for the reason of the appellant not answering the questions. In the said circumstances, the only logical conclusion that can be drawn is that the appellant was over powered by nearly 8 to 9 senior students and the appellant was ragged and made to sit on the floor by taking out shirt, for which reason, the appellant acted in self defence. The acts of the appellant fell within the ambit of Section 100 of IPC, as such, the appellant has to be acquitted of the charge under Section 304-PartII of IPC. In support of his contention, he relied on the judgments reported in the case of i) Puran Singh v. State of Punjab, (1975) 4 SupremeCourtCases 518, wherein the Hon’ble Supreme Court held : “18. The second point that falls for determination is as to what is the extent of right of private defence which the accused can claim in this case? In this connection, the High Court has given a finding that since the prosecution party had entered the land in possession of the accused and were trying to plough it, the appellants should have taken recourse to the public authorities instead of indulging in free fight with the prosecution. In other words, the High Court found that the right of private defence available to the accused was under the limitations provided for in Ss. 99 to 102 of the Indian Penal Code and these limitations apply to the facts of the present case, and the accused cannot claim any right of private defence. With respect we find ourselves unable to agree with this somewhat broad statement of the law. 99 to 102 of the Indian Penal Code and these limitations apply to the facts of the present case, and the accused cannot claim any right of private defence. With respect we find ourselves unable to agree with this somewhat broad statement of the law. It is true that the right of private defence of person or property is to be exercised tinder the following limitations: (i) that if there is sufficient time for recourse to the public authorities the right is not available; (ii) that more harm than necessary should not be caused; (iii) that there must be a reasonable apprehension of death or of grievous hurt to the person or damage to the property concerned.” ii) Ex.Ct.Mahadev v. Director General, Boarder Security Force and others, 2022 SCCOnLineSC 739, the Hon’ble Supreme Court held as follows: “21. To sum up, the right of private defence is necessarily a defensive right which is available only when the circumstances so justify it. The circumstances are those that have been elaborated in the IPC. Such a right would be available to the accused when he or his property is faced with a danger and there is little scope of the State machinery coming to his aid. At the same time, the courts must keep in mind that the extent of the violence used by the accused for defending himself or his property should be in proportion to the injury apprehended. This is not to say that a step to step analysis of the injury that was apprehended and the violence used is required to be undertaken by the Court; nor is it feasible to prescribe specific parameters for determining whether the steps taken by the accused to invoke private self-defence and the extent of force used by him was proper or not. The Court’s assessment would be guided by several circumstances including the position on the spot at the relevant point in time, the nature of apprehension in the mind of the accused, the kind of situation that the accused was seeking to ward off, the confusion created by the situation that had suddenly cropped up Civil Appeal No.2606 of 2012 resulting the in knee jerk reaction of the accused, the nature of the overt acts of the party who had threatened the accused resulting in his resorting to immediate defensive action, etc. The underlying factor should be that such an act of private defence should have been done in good faith and without malice.” iii) In Arvind Kumar v. State of Rajasthan, 2022(1)ALT(Crl.)222(A.P) the Hon’ble Supreme Court held as follows: “56. The evidence adduced on behalf of the prosecution, particularly, the eyewitnesses do not inspire confidence. While there is a clear denial of them having attacked the injured accused persons, a mere statement that they carried logs would not be sufficient to reject the plea of private defence especially in the light of the injuries suffered. The witnesses speak of multiple injuries suffered by the deceased and the other injured witnesses. The view that the evidence of an injured witness has to be placed at a higher pedestal may not apply to a case of private defence with the accused also injured. The doctor’s evidence does not support the specific overt act. Witnesses speak of knife, farsi and spears being used at random. The overt act attributed to the convicted accused using weapons such as farsi do not correspond to the injuries. The injuries are primarily lacerated in nature. This discussion we make in addition to our primary conclusion we arrived at already. Suffice it to note that the genesis and origin of the occurrence and the manner in which it took place are certainly suppressed. When the plea of private defence is taken, the quality of material evidence will have to be a bit higher than that of the one required in a normal circumstance. We are concerned with the role of the prosecution in proving the case beyond reasonable doubt. Unfortunately, two lives have been lost. However, mere suspicion on a moral ground can never be the basis for a conviction. We can only lament that the situation has been brought forth by the unwarranted approach of the prosecution. Incidentally, we approve the views of the High Court on the acquittals rendered. 59. After going through the judgments on four occasions by both the courts, we find that the convictions rendered are to be interfered with in the light of the discussions made. The evidence adduced is not separable and the common findings rendered shall be made applicable to all the accused. 59. After going through the judgments on four occasions by both the courts, we find that the convictions rendered are to be interfered with in the light of the discussions made. The evidence adduced is not separable and the common findings rendered shall be made applicable to all the accused. There are too many loopholes which cannot be filled up, nor is there any evidence to come to a different conclusion including that of exceeding the right of private defence. What emerged as a civil dispute between two groups of villagers turned into a criminal case. 60. We are thus inclined to hold that the Accused-Appellants are entitled to the benefit of doubt as we also give our imprimatur to the plea of private defence as possible and plausible with due discharge of onus.” By relying on the aforesaid decisions, it was argued that private defence exists in the present facts and circumstances of the case, for which reason, benefit of doubt has to be extended to the appellant. 7. On the other hand, Sri Sudershan, learned Assistant Public Prosecutor submits that the appellant had inflicted four incise wounds on D2 and according to P.W.10, inflicted six incised/stab injuries on D1, as such, it cannot be said that he was acting in self defence. As seen from the number of injuries, the appellant had exceeded his right of private defence and the protection under Section 100 of IPC cannot be extended to the appellant. 8. The evidence of P.W.2 discloses that the appellant and P.W.2 are students in the first year and D1, D2, P.W.16, 17, 19 and others were studying third year Hotel Management course. The said senior students along with D1 and D2 were staying at TRT No.104, Vidyanagar as tenants. On seeing the seniors, according to P.W.2, they went into lanes and thereafter, the appellant had consumed beer in the said by-lane. D1 and D2 chased the appellant and P.W.2 and forcibly took them to their quarter. It is further the evidence of P.W.2 that he was made to sit on the floor by removing the shirt in the presence of 8 to 9 senior students. 9. P.Ws.16, 17 and 19 did not dispute that P.W.2 and the appellant were taken to the quarter and also that they were questioned by them, who were seniors. It is further the evidence of P.W.2 that he was made to sit on the floor by removing the shirt in the presence of 8 to 9 senior students. 9. P.Ws.16, 17 and 19 did not dispute that P.W.2 and the appellant were taken to the quarter and also that they were questioned by them, who were seniors. However they stated that it was the appellant who attacked them without any reason. It is apparent from the evidence on record that both P.W.2 and appellant were afraid of the seniors ragging them, for which reason on seeing the seniors (D1 and D2), P.W.2 and appellant fled and ran into by-lane in the colony. 10. In the scenario of seniors ragging juniors, it can be said that the appellant and P.W.2 were afraid of the seniors because of their ragging and also were angry with the conduct of the seniors ragging them. 11. From the circumstances of the present case, it is evident that both P.W.2 and the appellant were forcibly taken to the seniors’ room, where they were made to sit on the floor and asked to remove their shirts. Admittedly, P.W.2 stated that the appellant was in a drunken state. The circumstances regarding; i) the appellant and P.W.2 running away into by-lane on seeing the seniors and thereafter they were caught by D1 and D2 ii) having brought them to the room, they were forced to kneel on the floor and shirts were taken off. The said circumstances indicate that the appellant was afraid of seniors and had consumed beer. He was ragged by nearly 8-9 seniors by making to sit on the floor and asked to remove his shirt. Admittedly, P.W.2 and the appellant were questioned as stated by P.W.2, 16, 17 and 19. It is not the case of the prosecution that the appellant was having any knife in his possession. The said knife with which the D1 and D2 were attacked was picked up from the room according to the prosecution. When the situation is visualized, it appears that the appellant, who was in drunken state was over powered and ragged by the seniors, who were nearly 8 to 9 in number. In the said circumstances of scare, anger and trying to protect his dignity, the attack by the appellant can be assessed to be a result of all the three factors. 12. In the said circumstances of scare, anger and trying to protect his dignity, the attack by the appellant can be assessed to be a result of all the three factors. 12. In the present facts and circumstances the violent reaction due to temporary insanity cannot be ruled out. The appellant could not have been in a situation to assess the wrongfulness of his acts. Further the stabbing appears to have been due an irresistible impulsive action unable to distinguish right from wrong in the situation he was in. In the said circumstances, benefit of doubt is extended to the appellant herein. 13. In the result, the conviction and sentence imposed by the learned Sessions Judge vide judgment dated 01.09.2008 in S.C.No.130 of 2007 is set aside. Since the appellant is on bail, his bail bonds stand cancelled. 14. Accordingly, the Criminal Appeal is allowed. As a sequel thereto, miscellaneous petitions, if any, shall stand closed.