Kerala High Court
Shibu vs State Of Kerala on 16 January, 2019
Equivalent citations: AIRONLINE 2019 KER 4
Bench: A.M.Shaffique, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 17TH POUSHA, 1940
CRL.A.No. 198 of 2014
AGAINST THE JUDGMENT IN SC 182/2009 of ADDL.SESSIONS COURT
(ADHOC)-II, THODUPUZHA DATED 13-06-2012
APPELLANT/ACCUSED:
SHIBU
S/O.SADHASHIVAN, VANCHIPPURATHU HOUSE,
MUTHANPADI BHAGOM, MATHAIPPARA KARA, UPPUTHATA
VILLAGE.
BY ADV. SRI.M.T.SURESHKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM-682031.
BY ADV.SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.11.2018, THE COURT ON 16.01.2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.198/14
-:2:-
JUDGMENT
Shaffique, J.
This appeal is filed by the accused in SC No.182/2009 on the file of the IVth Additional Sessions Judge (Adhoc-II), Thodupuzha challenging judgment dated 13/6/2012 by which he has been convicted for offence under Sections 302 and 307 of I.P.C. The Sessions Court had imposed on him imprisonment for life and to pay a fine of `1 lakh for offence u/s 302 of I.P.C., rigorous imprisonment for 7 years and to pay a fine of `15,000/- for the offence u/s 307 of I.P.C.
2. The case related to death of one Prabhakaran and injury caused to one Kishordas on 4/3/2007. The prosecution alleged that the accused along with the deceased, the injured and a few others were travelling in a jeep from Upputhara to Muthanpadi in Idukki District. There occurred a verbal spat between the injured and the deceased. Kishordas caught hold of the accused by his collar. The vehicle stopped at Muthanpadi on the request of the accused. Prabhakaran and Kishordas dragged the accused out of the vehicle and started assaulting him. The Crl.Appeal No.198/14 -:3:- accused took out a knife and caused injuries to Prabhakaran and Kishordas. Both the injured were taken to the hospital and Prabhakaran was declared dead.
3. The FIS was given by PW1 who was the driver of the jeep. Crime No.52/2007 was registered by the Station House Officer of Upputhara Police Station. The Circle Inspector of Police, Peerumedu conducted investigation and he submitted final report before the Judicial First Class Magistrate Court, Peerumedu and the matter was remitted to the Court of Sessions, Thodupuzha, which was transferred to the IV th Additional Sessions Court. Charge was framed and the accused denied having committed any of the offences. Prosecution examined PW1 to PW22 and marked Exts.P1 to P20. Material Objects 1 to 8 were produced and identified by the prosecution. No defence evidence was adduced. After completing the procedural formalities, the accused was tried and convicted as stated above.
4. Learned counsel for the appellant submits that there is absolutely no evidence to prove that the accused was responsible for the crime, and even otherwise, no offence could be made out u/s 302 of I.P.C. as the accused was not the assailant and if at all Crl.Appeal No.198/14 -:4:- he had committed the aforesaid acts, it is only by way of self defence. Even if the right of private defence is exceeded, still, he cannot be convicted under Sections 302 and 307 of I.P.C.
5. On the other hand, learned Public Prosecutor while supporting the judgment of the Sessions Court submitted that sufficient evidence was available to arrive at a conclusion that the accused had committed the offence under Sections 302 and 307 of I.P.C. and the defence of right of private defence had been rightly negatived by the trial Court.
6. Before proceeding further, it will be useful to refer to the evidence adduced by the prosecution to prove the guilt of the accused. There cannot be any dispute that Prabhakaran died on account of the injuries suffered by him. The inquest was conducted by PW20, Circle Inspector of Police. PW9 is a witness to Ext.P7, the inquest report. PW19, Assistant Professor and Deputy Police Surgeon, Medical College Hospital, Kottayam conducted post-mortem examination of Prabhakaran and Ext.P16 is the post-mortem certificate. He deposed about the injuries sustained by Prabhakaran. Following are the ante-mortem injuries suffered by him:-
Crl.Appeal No.198/14-:5:-
"1. Abraded contusion on outer aspect of left shoulder 2x1 cm transverse 5 cm below tip of shoulder.
2. Multiple small abrasions on the back of left hand over an area of 6.6 cm.
3. Linear abrasion on right side of front of chest 5x0.3 cm oblique upper inner and 4 cm below and at 5'0 clock position of right nipple.
4. Stab wound on front of right side of abdomen 5x3 cm, 3 cm below coastal margin and 2 cm outer to midline, vertical entered the peritonial cavity. No viscera injury noticed, the wound directed upwards and backwards on abdominal wall.
5. Incised wound on left post auricular region 6x0.5 cm, vertical, upper and 3 cm. Back to middle of ear. Cut the skin, deep fascial and muscles underneath. The skull intact. The lower portion deep to vertebrae and cut fractured the transverse process of 4 th cervical vertebrae on left side. Cut the vertebral artery of the same side."
7. According to PW19, Prabhakaran died due to the injury sustained to his neck. He also opined that it could be caused by MO1 knife. He further stated that the said injury would be sufficient to cause death in the ordinary course of nature.
8. From the evidence of PW19, Ext.P7 inquest report and Ext.P16 post-mortem certificate, it is rather clear that the deceased sustained two stab injuries, one on the front right side of abdomen, which entered the peritoneal cavity, but there was Crl.Appeal No.198/14 -:6:- no viscera injury and the other injury which is considered as the fatal one is on the head. The skin and deep facial and muscles underneath were cut. The skull was intact. It had also cut the vertebral artery on the left side of the fourth cervical vertebrae. From the aforesaid materials, it is rather clear that it was a case of homicide.
9. PW1, the driver of the jeep is one of the eye-witnesses to the incident. He deposed that the accused was sitting adjacent to him and PW3 Balan was sitting on the other side of the accused. Deceased Prabhakaran was sitting on the extreme end of the front seat. On the back of the jeep, there were four persons including PW2 and one Shalu. PW1 stated that while all of them were travelling in the jeep, two persons got down from the vehicle en route. PW2 Kishore abused PW3 Balan. They were abusing each other. They were using filthy words as if it was for fun. Accused asked PW2 not to use filthy words. PW2 questioned him as to what he would do if he uses filthy words. Accused answered that he will cut him into pieces. After some time, PW2 and accused started exchanging filthy words. PW2 caught hold of the shoulder of the accused from behind the vehicle. Accused Crl.Appeal No.198/14 -:7:- asked PW1 to stop the vehicle. Immediately, Prabhakaran, Balan and the accused got down. PW2 and Shalu also got down from behind. Prabhakaran and Kishordas (PW2) caught hold of the hands of accused. At that time, Shibu (accused) took a knife from his tucking and inflicted injury on the abdomen and left side of the neck behind the ear of Prabhakaran. Thereafter, he chased Kishore to stab him and he was also stabbed. Kishore took his vehicle and proceeded towards Munnampady. Shibu came back with a knife and ran towards Kothappara. Vehicle proceeded for 100 metres and capsized on the road side. A pick up van came and Shibu got inside the same. Kishore came out from the jeep. He was wearing only a shirt. He was not wearing lungi. He went to the house of Devassia, got a lungi and towel. He left the shirt which was blood stained there itself. They took the jeep of Devassia and proceeded towards Munnampadi. PW1 proceeded to Upputhara Police Station. He had given Ext.P1 FIS and identified his signature. The injured were taken to Kattappana St.John's Hospital. When he called, he was informed that Prabhakaran had died. In re-examination, Ext.P2 was marked, which was the statement given by PW1 to the Magistrate u/s 164 Crl.Appeal No.198/14 -:8:- Cr.P.C. Though several questions were asked regarding omissions, none of those statements had been marked on the side of defence.
10. PW2 Kishordas, the injured eye-witness has also given evidence stating the incident as spoken to by PW1. He deposed that when all of them got down, accused took a knife from his tucking and inflicted an injury on the abdomen of Prabhakaran and thereafter on the left side of his ear. He tried to run away. He was stabbed once. He tried to get hold of the knife. He suffered an injury on the right hand finger. It got severed. Again he was stabbed on the left hand and he ran away. When he was about to run away, he was stabbed from behind. He came back and got into the jeep. Since the gear of the vehicle was in neutral position, it proceeded a little further. He was bleeding and he felt dizzy. Vehicle went and hit on a coffee tree. Vehicle capsized. He got down of the vehicle and sat on the road. He saw people coming from the locality. He got into a shop. He only had a shirt. His dhoti was not seen. He asked for a dhoti and towel from Devassia's house. He proceeded in the jeep of Devassia towards Munnampadi. When he reached near his house, Prabhakaran's Crl.Appeal No.198/14 -:9:- son and aunty had come. When they were going towards the scene, he felt unconscious. He regained consciousness at a hospital. He identified his shirt as MO2 and lungi as MO3. He identified MO4 shirt, MO5 dhoti and MO6 chappals of Prabhakaran and MO1, the knife wielded by the accused. Cross-examination of PW2 was basically with reference to his marriage with Neethu. He admitted that he was having an affair with Neethu and he married her. However, he denied the fact that people in the locality had forced him to marry Neethu. Further cross- examination proceeded on the basis that PW2 had destroyed accused's raft. The defence had a case that PW2 was on loggerheads with the accused as the accused was instrumental in forcing PW2 to marry Neethu. However, later, the issues were solved and the accused was invited for PW2's son's 28 th day function. During cross-examination he admitted that he along with Prabhakaran had pulled the accused from the jeep. But he denied that they have manhandled the accused.
11. When questioned u/s 313 Cr.P.C., the accused denied the incriminating evidence against him. But, he filed a statement through counsel where he admitted his presence in the scene. Crl.Appeal No.198/14 -:10:- According to him, PW2 was on loggerheads with him as, according to PW2, accused was also instrumental in PW2 marrying Neethu. Later on, Neethu had an affair with another person as a result of which, PW2 was having enmity with him by stating that he was forced to marry an unchaste lady. He further stated that he was having a net and a raft for fishing operation and about a month before the incident, his raft was destroyed and he was also threatened. He also has a case that he was attacked at the instance of PW2 by a goonda. He had repeatedly informed Prabhakaran and others about the constant threat he had from PW2. Later on, he was invited for the 28 th day ceremony of PW2's son and he thought that they remained as friends. He further stated that on the fateful day, after purchasing certain articles, he had taken a ticket in Kalithozhan bus. At that time, the deceased, who is known as Keeri Prabhakaran, offered a lift in his jeep. He got down from the bus and when he offered to take a ticket, Prabhakaran told him that he need not pay anything. He got into the jeep. While travelling, Kishore (PW2) started abusing Balan (PW3) using filthy words. Accused asked Kishore why he was abusing such an elderly person. Kishore turned towards him Crl.Appeal No.198/14 -:11:- and they started calling words between them. Thereafter, Kishore caught hold of his neck from behind. He asked the jeep driver to stop the vehicle. To escape from the clutches, he got down from the jeep through driver's side. At that time, Kishore and Prabhakaran started physically manhandling him. Driver ran away. Prabhakaran caught hold of him on his legs and pulled him down. He caught hold of his testicle and pulled it. At that time, PW2 took a knife and uttering that accused has to be killed, attempted to stab him. When it was noticed that he would be stabbed, he caught hold of the knife from Kishore and brandished it and he ran away. Though the accused admits the fact that he was travelling in the jeep along with PW1, PW2, PW3 and deceased along with a few others, contention urged is that the fight was started by PW2 and thereafter PW2 along with deceased started manhandling him. The knife was taken by PW2. But he does not say as to how the deceased suffered the injury.
12. PW3 and PW4 are other eye-witnesses. PW3 also stated that while travelling in the jeep, PW2 started calling words. He took it as a fun. However, he did not call him any filthy words. Accused interfered and asked Kishore why he was calling such an Crl.Appeal No.198/14 -:12:- elderly person filthy words. Prabhakaran asked him to stop. Normally they get down at SNDP junction. Vehicle did not stop there. When it proceeded further down, Kishore caught hold of the collar of accused. Shalu asked the driver to stop the vehicle. Vehicle stopped. Prabhakaran got down. He asked the driver to get down. Through the driver's side, accused got down. He also got down from the vehicle. He took his articles and he along with Shalu proceeded further. There is a provision store and he informed the people there that there is a chance for a fight. People went towards the said place. He however did not state regarding the incident by which Prabhakaran suffered any injury. He was therefore declared as hostile.
13. PW4 is Shaji. He was also travelling in the same jeep. He also stated that there was an exchange of filthy words between Kishore and Balan as if they were having some fun. He stated that vehicle did not stop at SNDP junction, but the vehicle stopped in front of the shop. He along with Balan got down and went home. He was also declared hostile to the prosecution.
14. PW5 is Mathai. He heard an altercation in the road by the side of his house. When he reached the road side, he saw Crl.Appeal No.198/14 -:13:- Balan and Shalu getting down from the jeep and proceeding further. He saw the accused going away from the road. Though he asked the accused as to what happened, he did not say anything. He found blood-stains in the shirt of accused. When he went down towards the road, he saw Prabhakaran lying on the road soaked in blood.
15. PW6 is Antony. He stated that while he had parked his vehicle which was a pick up van, he heard the sound of side door being opened. The accused got into the vehicle. When he asked as to what happened, accused told him that there is a fight going on down the road and that he ran away and he was going to his house. PW6 took his vehicle towards his house where the accused got down and proceeded towards his house.
16. PW7 is Sunil. He is the driver of vehicle KL-5A/6550. He deposed that while he was sitting in front of a shop by about 2.00 p.m, he saw a vehicle capsizing about 75 feet away from his shop. He saw PW2 running away without his dress and PW2 came and stood by the side of his vehicle. The vehicle belonged to Devassia. PW2 asked to take him in the vehicle or else he said he would die. Devassia gave water and a lungi. He took Kishore to Crl.Appeal No.198/14 -:14:- his house initially. Prabhakaran's son and his wife got into the jeep. On the way, they saw Prabhakaran lying down. He was bleeding. There was no response from him. He was taken in the vehicle to St.John's Hospital. Doctor on examining declared that Prabhakaran is dead.
17. PW8 is a witness to Ext.P6 scene mahazar. PW9 is a witness to Ext.P7 inquest report. PW10 is a witness to Ext.P8 mahazar of the pickup van. PW11 is Devassia who had provided Kishore with a lungi and a towel. He arranged PW2 to be taken in his jeep to the house of PW2.
18. PW12 Madhavan deposed that he saw Shibu (accused), who told him that Kishore (PW2) had stabbed Prabhakaran. He was declared hostile by the prosecution.
19. PW13 is a witness to Ext.P9 mahazar on the basis of which MO1 knife was recovered. He also identified MO7 shirt and MO8 dhoti of the accused. Ext.P10 is the seizure mahazar. MO1 knife was recovered from an uninhabited dilapidated building belonging to one Roy. PW14 is the Village Officer who had prepared Ext.P11 site plan. PW15 is the Magistrate who recorded the 164 statement of PW1, PW7 and PW11. PW16 is the Doctor Crl.Appeal No.198/14 -:15:- who examined PW2 and has issued the wound certificate, Ext.P13. The following are the injuries suffered by PW2:-
"(1) Incised wound 2x5 cm right scapular area with profuse bleeding.
(2) Incised wound rt.index distal end and amputing ¾ of the finger.
(3) Incised left arm 1x1 cm.Abrasion rt.thump.
(4) Rt Haemopneumothorax"
20. The alleged cause was written as "stab by a person called Shibu at Munnampady by about 2.30 p.m." He opined that injury Nos.1 and 3 could be caused with MO1 knife and injury No.2 can be caused with the sharp edged portion of MO1 knife.
Injury No.4 is corresponding to injury No.1.
21. PW17 is the Doctor who examined the accused. The examination report is Ext.P14. He had partially healed abrasions on left pinna of the ear, left upper thigh and above right knee joint. Doctor opined that the accused had not given any explanation for the injury. All the injuries were minor and on the external part of the body and those injures could be caused by accidental fall.
22. PW18 was the Assistant Director, Serology, Forensic Science Lab, Thiruvananthapuram. He had received the material Crl.Appeal No.198/14 -:16:- objects sent from Court. Ext.P15 is his report. In Ext.P15 report, it is stated that items No.1 to 12 and 14 contained blood and bloodstains are found on item Nos.1, 2, 6 to 9 and the sample human blood in item No.15 was human blood belonging to Group A. Item Nos.7 to 9 contained human blood belonging to Group B. In item Nos. 10 and 14, human blood was insufficient to determine the group. Item Nos. 3, 4 and 13 were found to be foul smelling and was unsuitable for grouping. Item 10 is the metallic knife with wooden handle. It has a maximum length of 28 cms. The blade was sharp at one edge and tapering towards the tip.
23. PW19 conducted the post-mortem as has already been mentioned. PW20 is the Circle Inspector of Police who had conducted investigation in the matter. PW21 had completed the investigation and filed final report before Court. PW22 is the Assistant Sub Inspector of Police who registered FIR.
24. From the aforesaid evidence, especially the oral testimony of PW1 and PW2, it is rather clear that the injury suffered by Prabhakaran as well as PW2 was at the hands of the accused. The recovery of MO1 knife at the instance of accused based on his statement further corroborates the oral testimony of Crl.Appeal No.198/14 -:17:- PW1 and PW2. The accused does not deny the fact that he had brandished the knife. But, according to him, the knife was brought by PW2. He caught hold of the knife and in order to escape from the scene, he brandished the knife. Though he does not admit that the deceased and the injured suffered injury while he brandished the knife, there cannot be any other hypothesis especially taking into account the testimony of PW1 and PW2. Therefore, we have no hesitation to hold that death of the deceased was caused due to the injury suffered by him and those injuries were inflicted by the accused. Similarly, the injury suffered by PW2 was also at the hands of accused.
25. Going by the manner in which evidence was adduced, the witnesses were cross-examined and in the 313 statement given by the accused, he is claiming the right of private defence. Of course, from the nature of evidence that had been adduced, there was absolutely no provocation on the part of either of the parties which would have resulted in a murder. A group of persons knowing each other were travelling in a jeep. They were coming back after purchasing various items from a bazar. Two persons started using filthy words against each other in which the Crl.Appeal No.198/14 -:18:- accused interfered. This prompted PW2 to pull the accused by his neck. The vehicle stopped and all of them got down. There appears to have been a tussle or the accused would have thought that he might be manhandled by the other two viz., the deceased and PW2. Apparently at the time when they were travelling, there was no intention to commit any murder. Therefore, the entire incident of the crime being committed would have occurred in a spur of moment, when all of them got down from the vehicle. As per Section 97 of the Indian Penal Code, every person has a right, subject to the restrictions contained in S.99, to defend his own body against any offence affecting the human body. Section 99 states that the right of private defence in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence. Section 100 enumerates instances when the right of private defence of the body extends to causing death. S.100 reads as under:-
"100. When the right of private defence of the body extends to causing death- The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of Crl.Appeal No.198/14 -:19:- the right be of any of the descriptions hereinafter enumerated, namely:-
First - Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.
Secondly - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
Thirdly - An assault with the intention of committing rape;
Fourthly - An assault with the intention of gratifying unnatural lust;
Fifthly - An assault with the intention of kidnapping or abducting.
Sixthly - 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.
Seventhly - An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act."
26. There is no material in this case to arrive at a conclusion that the accused apprehended an assault by any weapon by the deceased or PW2. In fact, evidence would show that after the deceased was stabbed, the accused turned towards PW2 and he was also attacked. It might be true that he tried to Crl.Appeal No.198/14 -:20:- snatch away the weapon from the accused as PW2 suffered a cut injury on his finger. Further PW2 was chased and he ran away.
PW2 lost his lungi and he took assylum behind a jeep driven by PW7. PW2 was given a lungi and towel by PW11. Therefore, the fact that PW2 ran away from the scene on apprehending further attack itself would show that accused was not acting with an intention to defend himself. Further, there were two injuries on the deceased with the knife, a stab wound on the right side of abdomen and an incised wound on the left post auricular region on the back to middle of ear. The deceased was not armed and there is no evidence to prove that he was armed and if it was self defence, there was no reason to inflict two injuries. After inflicting injury on the deceased, he turned towards PW2 and inflicted injury on him initially and he ran after him and inflicted another injury. Of course, it might be an instance where the accused would have apprehended some danger of being assaulted by either the deceased or by PW2. But in order to apply S.100 of I.P.C., existence of any of the six conditions detailed therein, must exist. It is settled law that if the accused entertained a genuine apprehension of being attacked by the deceased and the accused Crl.Appeal No.198/14 -:21:- reasonably believed that the attack would result in grievous hurt, he can go to the extent of causing his opponents death in exercise of the right of private defence even though his adversary has not inflicted any blow on him. In the case on hand, the defence contention as evident from the statement filed u/s 313 (5) of Cr.P.C is that, after exchange of filthy words between PW2 and PW3 in which the accused interfered, PW2 caught hold of his neck from behind. The accused asked the driver of the jeep to stop the vehicle and in order to somehow escape from the scene, he got down from the side of the driver and at that time, PW2 and deceased attacked him physically. Deceased pulled him by his leg and he fell down and thereafter he caught hold of his testicle and pulled it. He further stated that PW2 thereafter took the knife uttering that accused has to be killed and he attempted to stab him. When he apprehended that he will be killed, he took the knife and brandished the same. As far as the incident in which the accused, deceased and PW2 got down from the jeep after the incident in which PW2 caught hold of the collar of accused is concerned, the same is supported by the testimony of PW1 and PW2. When they got down, neither PW1 or PW2 says Crl.Appeal No.198/14 -:22:- about any scuffle. PW1 deposed that "ഇറങയ ഉടന പഭ കരന കഷ റ കട ബവന കകക പടച ". It means that, immediately on getting down (from the jeep), deceased and PW2 caught hold of the hands of accused. He further deposed " ഉടന ബഎളയൽഇരനകത എടതകത. അത പഭ കരന വയറൽനക ണഅടതത യ ഇടത വശ കഴതന മകളൽ ന.വയനട ത ന0യ യ കത. എനട കഷ റന കതൻ ഓടകകയ പറതകതകയ ന.യ." It means that immediately Shibu took the knife from his tucking and stabbed Prabhakaran on his abdomen and also on the left side of his neck below the ear. Thereafter, he chased Kishore and stabbed on his back. PW2 refers to the incident as "അഷ7 ൾ പഭ കരന ഞന പറതറങ. അഷ7 ൾ ബകത എളയൽ ന എടത പഭ കരന വയറൽ കത. അത ക0ഞഇടനത ന.വയനട ഭ ഗത കത. ഞൻ ഓട ൻ ശമച. ഒര കത എനന കത. ഞൻ കതക കയറ പടച." It means that when Prabhakaran and PW2 got down, Shibu took a knife from his tucking and stabbed Prabhakaran on his abdomen. Thereafter he stabbed on the left side of his ear. PW2 tried to run away. He was stabbed once. He caught hold of the knife. But it is pertinent to note that PW2 has not stated that Prabhakaran and PW2 caught hold of the hands of the accused as spoken to by Crl.Appeal No.198/14 -:23:- PW1. Therefore, this disparity in the evidence would only prove the fact that PW2 has not stated that they were the aggressors whereas evidence of PW1 would show that the deceased and PW2 after coming out of the jeep caught hold of both the hands of the accused. Of course, at that point of time, he would have entertained an apprehension that he might be attacked. But the defence version that it was PW2 who had taken the knife and the accused somehow caught hold of the knife from him and brandished is not a believable version especially while looking at the injury sustained by the deceased and PW2. We are of the view that the evidence of PW1 to the extent to which he had stated that the accused had taken the knife from his tucking and inflicted injuries has to be believed. After the incident, PW6 has seen the accused, when the accused opened the side door of his pickup van. The accused got into the vehicle and he dropped him near the house of PW6. He also stated that the accused was wearing a shirt which was blood-stained. PW5 also had seen the accused going away from the scene. When he asked the accused, he did not reply anything. He also saw that the accused was wearing a shirt which was blood-stained.
Crl.Appeal No.198/14-:24:-
27. Even though it could be stated that the aggressors were the deceased and PW2, and they caught hold of the hands of the accused, once we believe the version of PW1, it is rather proved that it is the accused who took the knife and stabbed the deceased and PW2. It is settled law that sustaining of injury is not necessary and reasonable apprehension would be sufficient for the exercise of right of private defence. In this case, the accused had some injuries, but were not serious in nature. But, as already stated, sustaining of such injury by itself may not be necessary. An apprehension of grievous hurt or death by itself would be enough to exercise right of private defence as a defence. In State of U.P. v. Zalim [1996 SCC (Cri) 751], it was held that in an instance where accused persons dragged the deceased to the middle of road and one of them gave a blow on the chest of the deceased with deceased with dagger which caused grievous injury that resulted in his death, the right of private defence was exceeded since the deceased was holding only a shoe in his hand and there could not be a reasonable apprehension in the mind of the accused that there would be danger to their lives. Therefore, we are of the view that taking into account all the factual Crl.Appeal No.198/14 -:25:- circumstances in the case, this is an instance where the appellant had exceeded the right of private defence.
28. In the light of the aforesaid discussion, the homicide of Prabhakaran would fall under Exception 2 to S.300 of I.P.C. punishable u/s 304. The further question would be whether punishment should be imposed u/s 304 Part I or Part II of I.P.C. It is settled law that the accused should have the intention of causing death of Prabhakaran or of causing such bodily injury as is likely to cause death at the time of committing the crime in order to invoke Section 304 Part I. But if he does the act only with the knowledge that it is likely to cause death, without intention to cause death or to cause such bodily injury as is likely to cause death, Part II of S.304 alone applies.
29. In the case on hand, as already discussed, when they entered into the jeep, there was no confrontation between the parties, which developed when PW2 started abusing Balan which was taken up by the accused. When the jeep stopped, the accused got down through the driver's side and immediately Prabhakaran and PW2 came around and caught hold of his hands. While so, probably to avoid attack from them, he had committed Crl.Appeal No.198/14 -:26:- the crime which, according to us, from the facts of the case, is without any intention to cause death of Prabhakaran. In the result, he is liable to be punished u/s 304 Part II of IPC for committing the homicide of Prabhakaran. The Court below had also convicted the accused for having caused injury on PW2 for the offence u/s 307 of IPC. We have already discussed the injury suffered by PW2. The Doctor who examined PW2 viz., PW16 had not stated that any of these injuries were fatal. In order to attract S.307 of I.P.C., the attempt should be to commit murder. We have already discussed the evidence and had come to a conclusion that the accused did not have the intention to commit murder of Prabhakaran. The same principle would apply in the case of the injury inflicted against PW2 and at the best, the accused could be punished only u/s 324 of I.P.C.
In the result, this appeal is allowed in part as under:-
(i) The conviction and sentence of the accused under Sections 302 and 307 of I.P.C. are hereby set aside.
(ii) The accused is convicted u/s 304 Part II of I.P.C. and is sentenced to undergo rigorous imprisonment for 8 years and for the offence u/s 324 of I.P.C., rigorous imprisonment for a period Crl.Appeal No.198/14 -:27:- of two years.
(iii) The sentences shall run concurrently.
(iv) The period of detention, if any, undergone by the appellant in connection with this case, shall be given set off under Section 428 of Cr.P.C.
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A.M.SHAFFIQUE JUDGE Sd/-
SHIRCY V.
Rp //True Copy// JUDGE
PS to Judge