Kerala High Court
Vijayan @ Vijayappan vs State on 9 March, 2012
Bench: R.Basant, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE R.BASANT
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY, THE 9TH DAY OF MARCH 2012/19TH PHALGUNA 1933
CRL.A.No. 2066 of 2007 (C)
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SC.163/2006 of ADDL. SESSIONS COURT (SPL. COURT), KOTTAYAM
CP.14/2006 of J.M.F.C.,KOTTAYAM
APPELLANTS/ACCUSED:
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1. VIJAYAN @ VIJAYAPPAN,
S/O GOVINDAN, KALATHIPPARAMBIL HOUSE, PUTHUPPALLY
KOTTAYAM.
2. PONNAPPAN, S/O GOVINDAN,
KALATHIPPARAMBIL HOUSE, PUTHUPPALLY, KOTTAYAM.
BY ADVS.SRI.SREELAL N.WARRIER
SRI.B.RAGHUNANDANAN
SRI.C.DILIP
SRI.V.K.SUNIL FOR A2
RESPONDENT/COMPLAINANT:
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STATE
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.GIKKU JACOB GEORGE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 09-03-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
R.BASANT & K.VINODCHANDRAN, JJ.
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Crl.Appeal No.2066 of 2007-C
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Dated this the 9th day of March, 2012
JUDGMENT
BASANT, J.
i) Did the court below err in accepting and acting upon the oral evidence of PWs 1 and 3?
ii) Did the court below err in coming to the conclusion that the appellants are not protected by their right of private defence?
iii) Are the appellants/accused entitled to the benefit of any reasonable doubt?
These questions are raised for our consideration in this appeal by Advocate Sreelal N.Warrier and Advocate V.K.Sunil, the learned counsel for appellants 1 and 2 respectively.
2. The appellants, brothers, have been found guilty, convicted and sentenced under the impugned judgment by the learned Sessions Judge. The 1st appellant, younger brother, has been found guilty, convicted and sentenced under Sections 302 and 324 I.P.C. The 2nd appellant, elder brother, has been found Crl.Appeal No.2066 of 2007-C 2 guilty, convicted and sentenced under Section 323 I.P.C.
3. According to the prosecution at about 3.15 p.m on 30.03.2003, in the road margin to the north of Kaitheppalam on the public road, the appellants in furtherance of their common intention had caused the death of deceased Prakash. They had, in furtherance of their common intention, caused hurt with dangerous weapon (MO.1) on PWs 1 and 2. It is further alleged that the 2nd appellant had assaulted CW2 Dilip with his hands. It is thus that the allegations under Sections, 302, 324 and 323 I.P.C were raised against the appellants. The alleged motive is the conduct of the deceased in questioning the 2nd appellant, who allegedly assaulted CW2, Dilip.
4. Investigation commenced with the registration of Ext.P1(a) F.I.R by PW13 on the basis of Ext.P1 F.I statement lodged by PW1, an alleged eye witness. Investigation was completed and final report was filed by PW17. The learned Magistrate observing all legal formalities committed the case to the Court of Session. The learned Sessions Judge took cognizance of the offence. The appellants denied the charges levelled against them. Thereupon the prosecution examined Crl.Appeal No.2066 of 2007-C 3 PWs 1 to 17. Exts.P1 to P18 were also proved. MOs.1 to 17 were marked by the prosecution.
5. In the course of cross examination of prosecution witnesses and when examined under Section 313 Cr.P.C, the appellants/accused did not deny the incident as such. According to them an accident had taken place. PW5, a friend of the 2nd appellant, had suffered injuries. 2nd appellant wanted PW5 to be taken to the hospital. On that score, there was an exchange of words between the driver of the vehicle involved in the accident (Dilip CW2) and the 2nd appellant. A group of persons led by deceased Prakash including PWs 1 and 3 attacked the 2nd appellant. He was assaulted. He fell. At that juncture, the 1st appellant, the brother of the 2nd appellant, reached the scene. He allegedly saw another person, driver of an autorickshaw who had come to the scene, attempting to proceed towards the 2nd appellant with a dangerous weapon (MO.1). The 1st appellant at that juncture wrested the possession of MO.1 from the said person. In an attempt to save his brother the 2nd appellant, the 1st appellant swung that weapon at the assailants. He was thus able to save himself and his brother. The obvious suggestion is Crl.Appeal No.2066 of 2007-C 4 that the deceased, PW1 and PW2 must have suffered the injuries in the course of such an incident when the 1st appellant acted in defence of his brother.
6. The appellants examined DWs 1 and 2. DW1 was examined in support of the case of the appellants that the 1st appellant was a disabled person, but does not have the physical prowess to attack the assailants. This had obliged him to get himself armed with MO.1. DW2 was examined by the appellants as an eye witness to the occurrence. He was one, who travelled in the autorickshaw of such driver, from whose possession MO.1 was wrested by the 1st appellant. According to the appellants, DW2 was a truthful eye witness. He tendered evidence in support of the case of the defence. It is the case of the appellant that even the Investigator had identified DW2 to be an eye witness in the course of investigation. Exts.D1 to D4 were also marked on the side of the defence.
7. The learned Sessions Judge on an anxious consideration of all the relevant inputs came to the conclusion that the prosecution has succeeded in proving the offence alleged against the appellants. The 1st appellant was found Crl.Appeal No.2066 of 2007-C 5 guilty of the offence of murder punishable under Section 302 I.P.C committed by him against deceased Prakash. He was further found guilty of the offence under Section 324 for having caused injuries to PW1. So far as the 2nd appellant is concerned, he was found guilty of the offence under Section 323 - for having assaulted deceased Prakash with his hands. It is accordingly that the learned Sessions judge proceeded to pass the impugned judgment.
8. Before us, the learned counsel for the appellants and the learned Public Prosecutor have advanced their arguments. The learned counsel for the appellants contend that, at any rate, the court below was not justified in accepting and acting upon the oral evidence of PWs 1 and 3. That evidence is insufficient to establish the alleged offences against the appellants beyond reasonable doubt. At any rate, the learned counsel for the appellants contend that the appellants were entitled to be protected by their right of private defence. At any rate, it cannot be held that the 1st appellant had committed the offence of murder punishable under Section 302 I.P.C. The learned counsel for the 2nd appellant further contends that the 2nd Crl.Appeal No.2066 of 2007-C 6 appellant has been found guilty for a charge that has not been raised against him.
9. We have considered all the relevant inputs. An appellate judgment is; is expected to be read and ought to be reckoned as continuation of the judgment of the trial court. In that view of the matter, we are not attempting to re-narrate the oral and documentary evidence placed before the learned Sessions Judge. Suffice it to say that the learned counsel have taken us in detail and meticulously through the oral evidence of PWs 1 to 17 and DWs 1 and 2. We have also been taken through the contents of Exts.P1 to P18 and D1 to D4. The charges framed by the learned Sessions Judge against the appellants and the answers given by the appellants in the course of their examination under Section 313 Cr.P.C have also been read to us in detail. We shall refer to relevant materials wherever necessary in the course of discussions to follow.
10. We shall initially have a look at the law. Arguments have been advanced with the help of Asokan V. State of Kerala [1982 Crl.L.J 173 (DB)]. Specific reference to precedents does not appear to be necessary. The law on the point is, Crl.Appeal No.2066 of 2007-C 7 according to us, well settled. The burden in a criminal trial rests always squarely and heavily on the shoulders of the prosecution to prove the indictment beyond doubt. Whatever be the nature of the evidence relied on by the prosecution and whatever be the defence set up by the indictee, this burden continues, from the beginning to the end of a criminal trial, to be on the shoulders of the prosecution.
11. Section 105 of the Evidence Act mandates that the adjudicator must presume the absence of circumstances which would bring the case of the indictee within any one of the general exceptions to criminality under the Penal Code. We are concerned in this case with the general exception of the right of private defence recognised under Sections 96 to 106 of the I.P.C. This presumption under Section 105 is only a rebuttable presumption of fact. It is not incumbent on the indictee that he should adduce evidence in support of his claim for the general exception. He need not adduce evidence, but he can rely on the broad probabilities emerging from the very case of the prosecution, the answers given by the witnesses in the course of cross examination, the cogent explanations offered during the Crl.Appeal No.2066 of 2007-C 8 examination under Section 313 Cr.P.C and also on defence evidence if any. That an indictee has not chosen to adduce evidence or the fact that he had not pleaded the right of private defence specifically does not in any way affect his claim for protection of the right of private defence if such right of private defence is otherwise indicated from the evidence.
12. We must also remind ourselves the difference in the nature and quality of the burden on the accused to prove his claim for any one of the general exceptions. The prosecution must always prove its case beyond reasonable doubt. But, for an accused it is not necessary to prove his case to the hilt. The defence of any of the general exceptions advanced by the indictees need only satisfy the test of balance of probabilities as in a civil case. This difference in the nature of the burden on an accused has got to be alertly perceived by the adjudicator.
13. We may also mention that the court cannot import its standards of cold objectivity in a court room while considering the response of an accused posed with physical emergencies at the scene of the crime. Every court, as a prudent mind, has to give due allowance for the psyche of the accused who confronts Crl.Appeal No.2066 of 2007-C 9 the situation at the scene of the crime and the cold objectivity of a court room cannot apply while evaluating the response of an indictee posed with an emergency. He is not expected to modulate his response step by step and respond in a measured manner to the given situation.
14. We must promptly remind ourselves of the mandate of Section 99 of the I.P.C, which mandates that "the right of private defence in no case extends to inflicting of more injury than is necessary to inflict for the purpose of defence". We extract Section 99 I.P.C below:
"99. Acts against which there is no right of private defence:-- There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to Crl.Appeal No.2066 of 2007-C 10 the protection of the public authorities.
Extent to which the right may be exercised:-- The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence."
We do also remind ourselves that the right of private defence can be of the body and of property. Section 97 I.P.C mandates that every person has a right subject to the restrictions contained in Section 99 I.P.C. We extract Section 97 below:
"97. Right of private defence of the body and of property--Every person has a right, subject to the restrictions contained in Section 99, to defend--
First:-- His own body, and the body of any other person, against any offence affecting the human body."
(rest of the section omitted as irrelevant for our purpose now) Any citizen has a right of private defence to defend not only his own body but the body of any other person, against any offence Crl.Appeal No.2066 of 2007-C 11 affecting the human body. The learned counsel for the appellants point out and we accept that the right of private defence is available not only against offences where life of the victim is threatened, but in every case where an offence affecting human body is committed or apprehended to be committed. Such right of private defence would commence, as held in Section 102 I.P.C, from the point of time when reasonable apprehension of danger to the body arises and continues as long as such apprehension of danger to the body continues.
15. Such right of private defence may extend to the causing of death only if the apprehended danger can be brought within one of the six pigeon holes defined under Section 100 I.P.C. In all other cases, as held in Section 101 I.P.C, causing of any harm other than death is justified.
16. Having reminded ourselves of the law, we deem it appropriate to correctly and precisely understand the case of the prosecution. For this purpose, it will be apposite to make particular reference to the charges levelled against the appellants in the final report submitted by the police before court. We shall also take note of the charges framed by the Crl.Appeal No.2066 of 2007-C 12 court against the appellants. Of course, we note that there are certain insignificant errors which have crept into the charges framed by the court. We are of opinion that undue importance and emphasis need not be given to such inadequacy in the charge framed by the court below. We do particularly note that the name of PW1 has been incorrectly described in the charge sheet and instead of PW1 (CW1), it is the name of CW11 that is erroneously shown in the charge framed by the learned Sessions Judge. But we attach no significance to that inadequacy inasmuch as no prejudice is seen to have resulted. We are of course concerned and perturbed by such an error which has crept into such a crucial document on the basis of which trial had commenced.
17. Considering the importance of the precise allegations raised by the prosecution against the appellants, we make pointed reference to the allegations raised in the final report. The following specific allegations are raised.
1) The 2nd appellant beat CW2 Dilip with his hands;
2) The 1st appellant swung MO.1 sword stick and caused an injury on the head of PW2;
Crl.Appeal No.2066 of 2007-C 13
3) The 2nd appellant caught hold of deceased Prakash and unlawfully restrained him;
4) The 1st appellant with MO.1 sword inflicted an injury on the fingers of the left hand of PW1;
5) The 1st appellant inflicted the fatal stab injury on the deceased with MO.1.
Thereby it was alleged that offences punishable under Sections 323, 341, 324 and 302 read with 34 I.P.C were committed by the appellants.
18. At the outset we must note the precise factual allegations raised. It is the common case that opportunity for the occurrence presented itself without any premediation. No one has a case that the incident in this case was anticipated by anyone. As rightly noted by the court below, the incident can be sub divided into 3 specific parts. It is the common case that a mini van driven by its driver CW2 Dilip had reached the scene of the occurrence. The rear left hand side of the vehicle had hit PW5. The 2nd appellant was proceeding along with PW5. The 2nd appellant wanted PW5 to be taken to the hospital. An autorickshaw in which PW2 and others reached the scene of the Crl.Appeal No.2066 of 2007-C 14 occurrence refused to take PW5 to the hospital. Thereafter there was exchange of words/altercation between the 2nd appellant and the said Dilip. In such incident, the 2nd appellant is alleged to have assaulted the said Dilip with his hands. This is the first part of the incident as contended by the prosecution.
19. Seeing the assault on CW2 Dilip, a number of persons from the junction nearby had allegedly reached the scene of the occurrence. Deceased Prakash, PW1 and PW3 were in such group. There was an incident between deceased Prakash and the 2nd appellant. Deceased Prakash and others had pushed the 2nd appellant to the eastern road margin and there the 2nd appellant had fallen on the ground. This is the second part of the incident, according to the prosecution.
20. In the third and crucial part of the incident, the prosecution alleged that the 1st appellant reached the scene of the crime seeing the assault on his brother, the 2nd appellant. He allegedly took out MO.1 weapon which, he had concealed on his person. With that weapon, he allegedly inflicted the fatal stab injury on deceased Prakash. Thereafter altercation between the 2nd appellant and the deceased continued. The 1st appellant had Crl.Appeal No.2066 of 2007-C 15 swung MO.1 weapon, which was available with him, insisting that nobody should come near him. It was thus that PW1 allegedly suffered injuries.
21. We have already explained the version of the appellants while adverting to the stand taken up by the appellants in the course of his 313 examination. We do not think it necessary to repeat that now.
22. Thus there is broad unanimity between the rival contestants of the circumstances under which the incident started though there are material differences on the precise manner in which the incident took place. The prosecution examined PWs 1 to 5 in support of its case about the precise incident. The appellants on the contrary examined DW2 to prove their version of the incident.
23. We shall briefly refer to the salient aspects of the evidence. The evidence of PW1 has to be read and understood in the light of his first statement to the police in Ext.P1. We take specific note of the 3 portions of Ext.P1 with which PW1 was confronted by the defence. PW1 supported the case of the prosecution broadly.
Crl.Appeal No.2066 of 2007-C 16
24. So far as PW2 is concerned, he was declared hostile. Exts.P2 to P4 are the contradictions marked in his oral evidence. The appellants had also relied upon Ext.D1 case diary contradiction in their evidence. PW3 supported the case of the prosecution. Ext.D2 series case diary contradictions were marked in the course of cross examination of PW3. PW4 examined by the prosecution turned hostile to the prosecution completely. Ext.P5 series case diary contradictions were marked by the prosecution in an attempt to discredit PW4. PW5, predictably, did not support the prosecution. He was declared hostile. Ext.P6 series case diary contradictions were marked by the prosecution in the course of cross examination of PW5 after he was declared hostile.
25. On the side of the appellants, DW1 was examined and Ext.D4 was marked in an attempt to suggest that the 1st appellant was suffering from some physical disability. The precise date on which he suffered the injury which led to the physical disability perceived by DW1 on 01.04.2005 is not revealed to the court. Be that as it may, the evidence of DW2 and Ext.D4 show that on the date when DW2 examined the 1st Crl.Appeal No.2066 of 2007-C 17 appellant, he had some physical disability - to the extent of 40%.
26. DW2 claims to be an eye witness to the occurrence. In fact during the cross examination of other prosecution witnesses, no attempt whatsoever was made to introduce DW2 as a witness to the occurrence. But significantly PW16 Investigating Officer in the course of his cross examination conceded that he had identified PW2 to be a witness to part of the occurrence. To that extent, the criticism that DW2 has descended from thin air at the stage of defence evidence appears to be not justified.
27. Our attempts must be to pointedly consider the evidence of PWs 1 to 5 and DW2 and ascertain the precise manner in which the incident must have taken place. We shall thereafter have to consider whether the appellants are entitled to the right of private defence.
28. Before we undertake that exercise, we must take note of the contention advanced by the learned counsel for the 2nd appellant. The learned counsel contends that there is absolutely no evidence worth the name against the 2nd appellant to hold him guilty of any charge.
Crl.Appeal No.2066 of 2007-C 18
29. At the outset we note that the learned Sessions Judge has, rightly according to us, taken the view that appellants cannot be said to have acted in furtherance of their common intention. Their separate acts cannot be held to be united by any chord of common intention. That finding of the trial court is not challenged before us by the prosecution. Therefore the second appellant has not rightly been found guilty vicariously for any act on the part of the 1st appellant.
30. Virtually the only finding against the 2nd appellant is that he had beaten deceased Prakash. No other specific finding has been entered against the 2nd appellant by the learned Sessions Judge. The learned counsel for the 2nd appellant argues that the court below has committed a legal as well as factual error in convicting the 2nd appellant under Section 323 I.P.C for the alleged overt act against deceased Prakash. That finding cannot in law be sustained, it is argued.
31. We have looked into this grievance specifically. We take note that either in the charge raised by the Investigating Officer in the final report or in the charge framed by the learned Sessions Judge against the 2nd appellant, a specific allegation has Crl.Appeal No.2066 of 2007-C 19 not been raised that the 2nd appellant was guilty of any contumacious or culpable overt act against deceased Prakash. Such an allegation is significantly not there in the final report or charges framed by the court. It is for this purpose that we initially took pains to narrate the precise allegations raised against the appellants in the final report submitted by the Investigating Officer. The learned counsel for the 2nd appellant argues that the 2nd appellant has now been found guilty of an allegation which was not specifically raised against him. On that score conviction must be set aside, contends the learned counsel for the 2nd appellant.
32. The learned counsel then points out a gross factual error that has taken place. The learned counsel relying on the evidence of the prosecution witnesses points out that at no stage prior to the examination of witnesses in court did the prosecution have a specific case that it was the 2nd appellant who assaulted deceased Prakash. The very specific case, even from Ext.P1 F.I statement, was only that deceased Prakash rushed to the scene of the crime and assaulted the 2nd appellant with his hands. It is of course true that in court PWs 1 and 3 had Crl.Appeal No.2066 of 2007-C 20 attempted to raise allegations against the 2nd appellant of his having assaulted deceased Prakash with his hands. But the court below committed a great factual error in not particularly taking note of the fact that these allegations were not raised against the 2nd appellant in the statements of witnesses before the Investigating Officer. The necessary charge was not there. The necessary allegations were not there at the stage of investigation. In these circumstances, the conviction of the 2nd appellant under Section 323 is liable to be set aside, argues the learned counsel for the 2nd appellant Sri. V.K.Sunil.
33. We find merit in the contention of the learned counsel for the appellants. Factually it is correct that such an allegation/charge had not been raised against the 2nd appellant. We further note that this specific allegation - of the 2nd appellant having assaulted the deceased with his hands, was not specifically raised by PWs 1 and 3, the supporting prosecution witnesses now, in the course of their statement before the police. The conclusion appears to be irresistible, in these circumstances, that the conviction of the 2nd appellant under Section 323 I.P.C for having allegedly assaulted deceased Prakash cannot be Crl.Appeal No.2066 of 2007-C 21 sustained. The challenge raised by the 2nd appellant is hence entitled to succeed.
34. Having said so about the allegation/charge against the 2nd appellant, we shall now pointedly consider the charges against the 1st appellant/accused. We deem it the duty of the adjudicator to specifically enter findings of fact about the three parts of the incident that had taken place and that attempt has to be made with the help of evidence of PWs 1 to 5 and DW2 specifically.
35. CW2 Dilip has not been examined. It is very evident that there was an accident and PW5, the friend of the 2nd appellant, had suffered injury in the said accident. This is clear from the evidence of prosecution witnesses. This is proved beyond doubt by Ext.D3 and Ext.P18 marked before the court below. Evidence of hostile PW2 suggests that the attempt of the 2nd appellant at that point was only to ensure that the injured PW5 was taken to the hospital. His attempt did not succeed as the driver of the autorickshaw in which he came, sped away from the scene of the crime. It is thereafter that the alleged incident/altercation between CW2 and the 2nd appellant took Crl.Appeal No.2066 of 2007-C 22 place. In the absence of the evidence of CW2 it becomes difficult for the court to precisely ascertain and conclude with authenticity as to what must have taken place between CW2 and the 2nd appellant at that juncture. All the others (PWs 1 to 4) had come to the scene of the crime only later and it may not be sound and safe to rely on their testimony to ascertain what precisely had taken place between CW2 and the 2nd appellant. At any rate, we having already found the conviction of the 2nd appellant to be unsustainable, it is unnecessary to delve deeper into this controversy. We may note that the charge against the 2nd appellant was that he had assaulted CW2 and the court below has not entered any finding against the 2nd appellant on that aspect. About the first part of the incident, we can only come to a conclusion that there was an altercation between the 2nd appellant and CW2 about the incident/accident in which PW5 suffered the injury.
36. We now come to the second part of the incident. There evidently was some wordy or physical altercation between CW2 and the 2nd appellant as concluded by us in respect of the first part of the incident. A number of persons including Crl.Appeal No.2066 of 2007-C 23 deceased Prakash, PW1, PW2, PW3 and PW4 appear to have converged at the scene of the crime. This is evident from the evidence of PWs 1 to 4 - including those who support the prosecution and those who had turned hostile to the prosecution. Even the evidence of DW2 points to this aspect. What precisely had happened is the next question to be considered. If we go by the earlier statement in Ext.P1, there can be no doubt that the second part of the incident commenced when Prakash, the deceased, assaulted the 2nd appellant. On that aspect, there can be no doubt in the light of Ext.P1. Notwithstanding the prevarication attempted to be made by PWs 1 and 3, we find no difficulty in coming to a safe conclusion that the second part of the incident commenced when deceased Prakash - obviously perturbed by the alleged conduct of the 2nd appellant against CW2, assaulted the 2nd appellant with his hands. About what followed also safe reliance can be placed on the evidence of PWs 1 and 3. The 2nd appellant was pushed from that spot to the spot on the eastern road margin located in Ext.P7, as the scene of the crime by the Investigating Officer. In the course of that incident, the 2nd appellant had fallen to the ground. So much is evidently Crl.Appeal No.2066 of 2007-C 24 beyond controversy from the totality of inputs that are available. Therefore about second part of the incident, we conclude that deceased Prakash had initially assaulted the 2nd appellant. There was a push and pull and the 2nd appellant was pushed to the point where the third part of the incident took place.
37. We now come to the third part of the incident, which is most crucial in the adjudication of the alleged guilt of the 1st appellant. Even though PW1 in Ext.P1 had a case that the 1st and 2nd appellants were together when the incident started, that case is significantly given up by the prosecution. The 1st appellant had come to the scene of the crime later - at the end of the second part of the incident, it is now evident. That is the case of the prosecution also and we do not think it necessary to advert to and marshal facts in support of that conclusion. At that spot, we note that the 1st appellant had MO.1 weapon with him. Even the 1st appellant does not appear to have disputed that. The answers given by the 1st appellant in his 313 examination and the evidence of DW2 also do convince us that when the third part of the incident started, the 1st appellant was having MO.1 weapon with him.
Crl.Appeal No.2066 of 2007-C 25
38. Serious disputes are raised as to how MO.1 came into possession of the 1st appellant. It is the case of PWs 1 and 3, supporting witnesses now, that the 1st appellant had taken out MO.1 from the place where it was concealed under his clothes. We immediately look at the nature of the weapon MO.1 of which we get a good detailed description in Ext.P16. The weapon had a total length of 46.5 c.m. The handle had a length of 10.5 c.m and the blade had a length of 35.5 c.m. Both edges of the weapon are sharp. There was a gap of 0.5 c.m between the blade and the handle. It is such a weapon, it is now stated, that the 1st appellant was carrying concealed on his person. That theory does not inherently inspire our confidence. At any rate, we are satisfied that the said theory deserves to be carefully scrutinised and evaluated. It is crucial at this juncture to note that no one has a case that the 1st appellant in his widest imagination could have contemplated the incident that happened. The 1st appellant is not shown to have any such questionable antecedents as to persuade the court to meekly swallow the version that such a weapon was being carried by the 1st appellant with him. The evidence indicates that the 1st appellant had also gone to attend Crl.Appeal No.2066 of 2007-C 26 a marriage feast along with certain other witnesses. That theory
- of the appellant having carried MO.1 concealed in his clothes, though not impossible, is certainly not readily acceptable. We therefore think that anxious scrutiny must be madee before such a bizarre theory is readily accepted by the court.
39. In this context we revisit Ext.P1 F.I statement lodged by PW1. According to PW1, at the scene of the crime, another autorickshaw had come and it was from that autorickshaw that the 1st appellant took MO.1 weapon. Though the investigating officer also in his cross examination accepts that he had identified such an autorickshaw and the driver of the said autorickshaw (which had come to the scene of the occurrence), he is not examined. PW1 now takes a "U" turn and says that the weapon was not taken from the autorickshaw and it was taken from its place of concealment - on the body of the 1st appellant. We now consider the evidence of DW2. DW2, we repeat, is admitted by PW16 as a witness identified by him as an eye witness to part of the occurrence. It is the case of DW2 that the 1st appellant had wrested possession of MO.1 from the driver of an autorickshaw. Precise ascertainment of the manner in which Crl.Appeal No.2066 of 2007-C 27 possession of MO.1 was obtained, appears to be unnecessary in the facts and circumstances of the case. But it does appear to us that the theory of the defence that the 1st accused/appellant came into possession of MO.1 which came in handy at the scene of the crime appears to rhyme better with human probabilities and the common course of events.
40. The fact remains that at the commencement of part three of the incident, the 1st appellant had MO.1 with him. At that spot, we find that the 2nd appellant had fallen on the ground in the course of the melee between him on the one side and the deceased and some others on the other. Words used by the 1st appellant at that juncture as admitted by the prosecution witnesses and as revealed from the case diary contradictions marked, suggest that the 1st appellant was wanting the others to release his brother 2nd appellant (videda avane). It is the case of the prosecution that the 1st appellant deliberately inflicted injury on the deceased with MO.1. The incident did not stop there. It continued. There was a push and pull between the deceased and the 2nd appellant even thereafter according to the prosecution. Both had rolled to the side of the road. There was an incline Crl.Appeal No.2066 of 2007-C 28 downward towards east from the road. The scene mahazar indicates that the incident had taken place not only on the road margin. Part of the incident had spilled over to that incline by the side of the road. We find it easy, in these circumstances, to come to a specific finding of fact that the deceased had suffered injuries at the hands of the 1st appellant with MO.1 weapon. In fact, even though the 1st appellant did not specifically admit that fact, narration of the incident by the 1st appellant in his examination under Section 313 Cr.P.C does also indicate that he had also inevitably accepted this fact though he did not make any specific admission on that aspect.
41. We now come to the last portion of the third part of the incident. It is the common case of witnesses, duly confirmed by the case diary statements marked - of prosecution witnesses before the Investigating Officer, that the 1st appellant had swung MO.1 at persons who were coming towards the 1st and 2nd appellants. On that aspect of the matter also, we find absolutely no doubt. PWs 1 and 3 themselves had made crucial admissions on this aspect. This, according to PW1, is how he suffered injuries on the fingers of his left hand. The conclusion appears Crl.Appeal No.2066 of 2007-C 29 to be easy that the injuries must have been suffered by PW1 when his hands came into contact with MO.1 weapon which the 1st appellant was swinging at persons who were about to come near them with the demand that no one should come near them.
42. It may not be inappropriate in this context to take note of the evidence of hostile PW2. We reckon the evidence of hostile PW2 to be relevant and significant. He was present at the scene of the crime. According to him, he had reached the scene of the crime in an autorickshaw along with some others. According to his statement before the police, he had suffered injuries in the course of the incident. The prosecution wanted a charge to be framed against the 1st appellant for having caused those injuries. But according to PW2 in court, he did not suffer injuries at the hands of the 1st appellant. He attempted to explain that he suffered the injuries in some other manner. The totality of circumstances indicates that PW2 after suffering the injuries had gone away from the scene of the crime. He had gone to a doctor. He had advanced a false version to the doctor that he had suffered injuries in a fall. The prosecution had not chosen to examine the said doctor. We must say that the Crl.Appeal No.2066 of 2007-C 30 evidence of PW2 - not his evidence as hostile witness before court, even his statements before the Investigating Officer, does generate serious doubts about the manner in which he had suffered injuries. That circumstance does also loom large while attempting to evaluate the sequence of events that had taken place.
43. Having come to the above specific findings of fact, the next question is whether the 1st appellant was protected by the right of private defence. His brother, the 2nd appellant, was being attacked by deceased Prakash and some others. Of course it was an attack with hands. May be the improper conduct on the part of the 2nd appellant in his dealings with CW2 may have caused dissatisfaction in the mind of deceased Prakash and others to act against the 2nd appellant. But in any view of the matter, it cannot be held that the 2nd appellant did not have a right of private defence when he was assaulted by deceased Prakash and some others. The 1st appellant, the brother of the 2nd appellant, had come to the scene in such circumstances. We have no hesitation to agree that under clause firstly of Section 99 I.P.C, the 1st appellant as well as the 2nd appellant had a right Crl.Appeal No.2066 of 2007-C 31 to defend the person of the 2nd appellant. The availability of the right of private defence for the 1st and 2nd appellants against the conduct of the deceased and others who acted along with the deceased cannot possibly be denied or disputed. In such assault, the 2nd appellant had fallen on the ground. It is at that juncture that the 1st appellant, his brother, goes to the scene. The court below, as rightly pointed out by the learned counsel for the appellant, appears to have assumed that a right of private defence can arise only when there is a threat/danger to the life of a victim. A careful reading of Section 97(1) clearly shows that the right of private defence is available as soon as an offence against person or apprehension of commission of an offence against person is aroused in the mind of the victim/defender. The fact that it was not the 1st appellant and it was his brother the 2nd appellant who was attacked does not affect the right of private defence of the 1st appellant.
44. Did the 1st appellant/accused exceed his right of private defence? This is the next question to be considered. We must always remind ourselves of the relevant portion of Section 99 which we have already extracted that the right of private Crl.Appeal No.2066 of 2007-C 32 defence cannot justify infliction of more harm than is necessary to inflict for the purpose of defence. It is true that there were a number of persons including the deceased who had turned their ire against the 2nd accused. But there is significantly no evidence to even remotely suggest that any one of them was armed. We must certainly give due allowance to the apprehension of a person like the accused facing unforeseen situation on the ground. But, we must always remind ourselves that the right of private defence is a defensive right. It cannot be used as an excuse for aggression. Though weighing of the options in golden scales is not expected from a person faced with such a situation, he cannot certainly exceed his right of private defence. The conduct of the 1st appellant using MO.1 to defend such an assault with hands on the 2nd appellant does appear to us to be a clear case of exceeding the right of private defence. More harm than what was necessary to be inflicted for the purpose of defence was certainly inflicted by the use of MO.1 and by the infliction of injury 1 suffered by the deceased Prakash described in Ext.P11 postmortem certificate. We extract the said injury No.1 below: Crl.Appeal No.2066 of 2007-C 33
"Incised penetrating wound, 3.8 X 1 cm. Oblique, on right side of front of abdomen, lower inner end in the midline and 4 cm below sternum and upper outer end 3 cm to the right of midline. Both ends of the wound sharply cut. Abdominal cavity was penetrated, left lobe of liver was transfixed, diaphragm was pierced, chest cavity was penetrated and descending aorta was incised involving its full thickness.
The wound was directed upwards and backwards for a depth of 9.8 cm. Left chest cavity contained 2000 ml. and right chest cavity, 1500 ml. of fluid blood. Both lungs were pale and partially collapsed."
45. We agree with the learned counsel for the appellants that the 1st appellant/accused would not have intended to cause the death of the deceased. That evidently was not his intention. There are no circumstances to lightly assume that he had any such intention. His act was evidently without premeditation. In whatsoever manner he may have obtained possession of MO.1 it Crl.Appeal No.2066 of 2007-C 34 would be impermissible to draw an inference of premeditation on the part of the 1st appellant by his mere conduct of having MO.1 in his possession. The offence committed by the accused would certainly qualify to be the offence of murder as defined under clause thirdly of Section 300 I.P.C. The question is only whether the 1st accused is entitled to the mitigative protection of exception 2 to Section 300 I.P.C.
46. We extract exception 2 to Section 300 I.P.C below:
"Exception 2:-- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence."
47. We have already taken the view that the 1st accused had the right of private defence under Section 97(1) to defend the person of his brother, the 2nd appellant. Under Section 102, Crl.Appeal No.2066 of 2007-C 35 the right of private defence extends to causing any harm other than death. But in this case death was caused. We are unable to agree that the case of the 1st appellant can be brought within clauses firstly or secondly of Section 100 I.P.C. We do not find any scope for a reasonable apprehension that death or grievous hurt might have resulted to the 2nd appellant, if death of the deceased were not caused. We repeat that the attack was by the deceased against the 2nd appellant with hands only. May be there were some other persons also along with the deceased at that time. But they were also not armed and certainly an apprehension of danger to life or grievous hurt does not appear to be reasonable. Therefore the case of the 1st appellant cannot obviously fall under clauses firstly or secondly of Section 100 I.P.C. It has therefore got to be held that the 1st appellant would be entitled only to the mitigative protection of exception 2 to Section 300 I.P.C. We readily agree that the 1st accused is entitled to such protection as the right of private defence was exercised by him in good faith. He had exceeded the power given to him by law. Death was caused even though it was not justified under Section 100 I.P.C. The death was caused without Crl.Appeal No.2066 of 2007-C 36 any premeditation. Though the 1st appellant may have had knowledge that he was doing more harm than was necessary for the purpose of defence, an intention to that effect cannot be certainly assumed. We hence hold that the 1st appellant is entitled to protection of exception 2 to Section 300 I.P.C.
48. The result is that the offence of culpable homicide, which gets aggravated to one of murder by the play of clause thirdly of Section 300 I.P.C, slides back to the offence of culpable homicide not amounting to murder by the play of exception 2 to Section 300. We are satisfied, in these circumstances, that the 1st accused deserves to be convicted only under Section 304 part 2 I.P.C. To this extent alone the challenge in this appeal by the 1st appellant can succeed.
49. So far as the injury caused to PW1 is concerned (we note that there is no finding against the 1st accused for the injury caused to PW1), we hold that he is protected by the right of private defence squarely. Even the evidence of the injured PW1 clearly suggests that the appellant had only swung MO.1 weapon with the request/command that no one should come near him and the 2nd appellant. It was in the course of such an attack that Crl.Appeal No.2066 of 2007-C 37 the fingers of the left hand of PW1 suffered injuries. Under Section 101 I.P.C, the 1st accused is perfectly protected by his right of private defence in causing the said injury to PW1.
50. We now come to the question of sentence. We note that the 1st appellant has already undergone imprisonment under the impugned judgment for a period of about 5 years. We are satisfied, taking note of the totality of circumstances, that imposition of a sentence of R.I for a period of 5 years and fine of Rs.25,000/- shall meet the ends of justice eminently. Appropriate default sentence can also be imposed.
51. In the result:
A) This Crl.Appeal is allowed in part;
B) The verdict of guilty, conviction and sentence imposed
on the 2nd appellant/accused for the offence under Sections 323 I.P.C (for having allegedly caused simple hurt to deceased Prakash) is hereby set aside. The 2nd appellant is found not guilty of the said charge against him. He is consequently found not guilty and acquitted of all charges against him;
C) a) The verdict of guilty, conviction and sentence imposed on the 1st appellant/accused for the offence under Crl.Appeal No.2066 of 2007-C 38 Section 302 I.P.C (for having caused death of deceased Prakash) is altered and modified. In supersession of the direction in the impugned judgment, the 1st appellant is found guilty, convicted and sentenced under Section 304 (2) I.P.C to undergo R.I for a period of 5 years and to pay a fine of Rs.25,000/- (Rupees Twenty five thousand only). In default of payment of fine, he shall undergo R.I for a further period of one year.
b) The verdict of guilty, conviction and sentence imposed on the 1st accused under Section 324 I.P.C (for having caused hurt to PW1) is hereby set aside. The 1st appellant is found not guilty of the said charge against him. He is consequently acquitted of the said charge.
Registry shall forthwith communicate a copy of this judgment to the court below and the prison authorities, where the 1st accused is detained. Revised warrant of commitment shall be issued by the court below forthwith.
(R.BASANT, JUDGE) (K.VINODCHANDRAN, JUDGE) rtr/