Suresh vs State Of Kerala on 23 October, 2024

[Cites 24, Cited by 0]

Kerala High Court

Suresh vs State Of Kerala on 23 October, 2024

These appeals arise from S.C.No.811 of 2012 on the files of the Court of the Additional Sessions Judge-IV, Kollam. There were six accused in the case. Among them, accused 1 and 3 were found guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (IPC) and the second accused was found guilty of the offence punishable under Section 324 IPC, and accordingly, they were convicted and sentenced. The remaining accused were acquitted of the charges. The appeals are preferred by accused 1 to 3 challenging their conviction and sentence in the case.

2. Vinod, Sajeer and Ayyappan were activists of the political party, the Communist Party of India (CPI). A procession Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 6 :- was conducted by the said political party in the locality of the place where the crime, which is the subject matter of the case, took place on 16.05.2010. The first accused in the case is a barber by profession and he runs a shop on the western side of the road leading to the place called Ampathekkar. Although the shop of the first accused is not one abutting the road, but only abutting a lane which starts from the road, the shop building is one constructed close to the road. The procession was moving from south to north towards Ampathekkar junction. Vinod, Sajeer and Ayyappan were the last three participants in the procession. The occurrence which is the subject matter of the case took place at about 4 p.m. in front of the shop of the first accused, immediately after the procession crossed the point from where the lane starts and Vinod, Sajeer and Ayyappan sustained injuries in the occurrence. Sajeer and Ayyappan were taken first to Nilagiri Hospital, Kulathupuzha and from there to Mission Hospital, Anchal. While the doctor at the Mission Hospital, Anchal was examining Sajeer and Ayyappan, Vinod was brought dead there. Sajeer and Ayyappan were later taken to the Medical College Hospital, Thiruvananthapuram. A case Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 7 :- was registered by Kulathupuzha Police in connection with the crime based on information furnished by Sajeer while undergoing treatment at the Medical College Hospital. The investigation in the case revealed that it was the accused who caused injuries to Vinod, Sajeer and Ayyappan. Final report was accordingly filed against them alleging commission of offences punishable under Sections 147, 148, 341, 302, 307, 323 read with Section 149 IPC.

3. There was a quarrel between the accused and Biju, the brother of the deceased on an earlier occasion. The accusation against the accused in the final report is that the deceased warned the accused in connection with the said incident and on account of that reason, at about 4 p.m. on 16.05.2010, while the procession was going on, the accused formed themselves into an unlawful assembly, teased and hurled offensive words against Vinod and others. It is alleged that aggrieved by the said conduct of the accused, the deceased and others including Sajeer and Ayyappan proceeded to the shop of the first accused and questioned the accused in front of the shop about their conduct and in the course of the Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 8 :- verbal altercation that took place thereupon, the deceased beat the first accused with his hand. It is also alleged that the first accused then, after taking out a pair of scissors from the shop, stabbed Sajeer on his neck and when Sajeer got away from the attack, the stab fell on his right hand and when the deceased and Ayyappan attempted to save Sajeer from the attack of the first accused, the first accused inflicted a stab injury on the chin of the deceased. It is also alleged that the third accused thereupon stabbed on the left chest and on the left hand of the deceased with another pair of scissors. It is also alleged, among others, that in the meanwhile the second accused hit Ayyappan with a stone on his head.

4. On the accused being committed to trial, the Court of Session framed charges against them to which they pleaded not guilty. The prosecution thereupon examined 17 witnesses as PWs 1 to 17 and proved through them 31 documents as Exts.P1 to P31. MOs 1 to 18 are the material objects in the case. On the closure of the evidence of the prosecution, when the accused were questioned under Section 313 of the Code of Criminal Procedure (the Code), they denied Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 9 :- the incriminating circumstances against them. As the case was not one found fit for acquittal under Section 232 of the Code, the accused were called upon to enter on their defence. A witness was examined on the side of the accused thereupon as DW1. Thereupon, on a consideration of the evidence on record, the Court of Session found accused 1 and 3 guilty of the offence punishable under Section 302 read with Section 34 IPC and the second accused guilty of the offence punishable under Section 324 IPC. They were accordingly convicted and sentenced.

5. It is seen that in terms of the order passed on 25.10.2017 in Crl.M.A. No. 5516 of 2017 in Crl.Appeal No.964 of 2017, this court suspended the execution of the sentence passed against the second accused on executing a bond.

6. Heard Adv.Sri.S.Rajeev for the first accused, Adv.Sri.Arun Babu for the second accused and Adv.Sri.Arun Krishnan for the third accused. Learned Public Prosecutor, Sri.E.C.Bineesh addressed arguments on behalf of the State.

7. Even though it was alleged by the prosecution that the accused committed the crime after forming Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 10 :- themselves into an unlawful assembly with the common object of committing the murder of Vinod, the Court of Session held that the prosecution failed to establish that case. It was thereupon that the Court of Session convicted accused 1 and 3 for the offence punishable under Section 302 IPC on the basis that they shared the common intention to commit the murder of the deceased.

8. The learned counsel for the appellants did not dispute the finding rendered by the Court of Session that the case on hand is a case of homicide. Instead, the attempt of the learned counsel was to establish that the complicity of accused 1 to 3 in the crime has not been proved by the prosecution beyond reasonable doubt. The main argument put forward by the learned counsel for the first accused, however, was that even if it is found that the prosecution has succeeded in establishing the complicity of the first accused in the crime, he cannot be convicted for the offence punishable under Section 302 IPC, for according to the learned counsel, even though it is permissible for the court to convict the accused invoking Section 34 IPC in a case of this nature, there is absolutely no Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 11 :- material in the case to convict the first accused invoking Section 34 IPC. The alternative argument advanced by the learned counsel for the third accused, however, was that even if it is found that the prosecution has established the complicity of the third accused in the crime, he is not liable to be convicted in the case as the facts demonstrate that the act, if any, committed by the third accused was one done in the exercise of his right of private defence. The alternative argument advanced by the learned counsel for the second accused, however, was that the conviction of the second accused under Section 324 IPC is without any basis for, there is nothing on record to corroborate the version of the witnesses that the second accused hit Ayyappan with a stone on his head. That apart, according to the learned counsel for the second accused, there was no corresponding injury also on the body of Ayyappan. It was also argued that the stone allegedly used by the second accused was also not recovered.

9. The learned Public Prosecutor supported the impugned judgment pointing out that the proved facts would demonstrate the complicity of the convicted accused in the Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 12 :- crime and also that accused 1 and 3 shared the common intention to commit the murder of the deceased. In the context of the argument advanced by the learned counsel for the third accused, it was also argued by the learned Public Prosecutor that inasmuch as the accused were the aggressors, the third accused cannot claim the benefit of the right of private defence. The learned Public Prosecutor also relied on the recent decision of this Court in Thomas @ Thomachan v. State of Kerala, 2024 KHC 954, in support of the said stand taken by him.

10. We have perused the evidence on record closely and considered the arguments put forward by the learned counsel for the accused.

11. The points that fall for consideration are the following:

(1) whether the prosecution has succeeded in establishing the complicity of accused 1 to 3 in the crime;

(2) if point (1) is answered in the affirmative, whether the Court of Session was justified in applying Section 34 IPC to hold that the first accused is also guilty of the Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 13 :- offence punishable under Section 302 IPC;

(3) if point (1) is answered in the affirmative, is this a case where the third accused was justified in inflicting the fatal injuries on the deceased in exercise of his right of private defence;

(4) whether the finding of the Court of Session that the second accused is guilty of the offence punishable under Section 324 IPC, is sustainable in law; and (5) the reliefs, if any, the accused are entitled to.

12. The points:- In order to consider the points, it is necessary to delve deep into the evidence in the case. The prosecution examined three witnesses to prove the occurrence. Among them, PW1 is none other than Ayyappan who was in the company of the deceased and Sajeer while participating in the procession. The version of PW1 as regards the occurrence is that when they reached near the shop of the first accused, the accused hurled offensive words against them and also teased them and while they were questioning the accused for the same, the deceased beat the first accused. It was also his version that the first accused then took out a pair of scissors from his shop and attempted to stab on the neck of Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 14 :- Sajeer which, when he warded off, fell on his right hand. It was also deposed by PW1 that he along with the deceased then pushed away the first accused and the first accused then attempted to stab on the neck of the deceased and since the deceased got away, the stab fell on his chin. It was also deposed by PW1 that the third accused then stabbed on the left chest of the deceased with the pair of scissors carried by him. It was also deposed by PW1 that about a month prior to the occurrence, the accused assaulted Biju, the brother of the deceased and when the deceased came to know about the said incident, PW1 along with the deceased and Sajeer warned them and it is on account of that reason that the accused attacked them. In cross-examination, PW1 admitted that the barber shop of the first accused is situated about 10 feet inside the road and that he did not inform the police the particulars of the offensive words used by the accused. Similarly, PW1 admitted that he along with the deceased and Sajeer went near the shop of the first accused when the accused howled and used offensive words. According to PW1, even when they approached the accused they used offensive words and it was Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 15 :- then that the deceased assaulted the first accused. The relevant portion of the cross-examination of PW1 reads thus:

"ച ത വ ള ച കവ യപ ൾ ഞങൾ 3 പ ര അപങ ട ചചനത ണ. ചചനപ ൾ വ ണ ച തവ ള ച. അപ ൾ വ പ ദ A1-ച അട ച."

It was also admitted by PW1 that when he along with the deceased and Sajeer went near the shop of the first accused, the accused were not carrying any weapon and the weapon used by the third accused was one taken by him from the scene of occurrence. The relevant evidence read thus:

"A3-യചട കയ ൽ ആദ% ഞ ൻ കത ക കണ ല. A1- അട ക ട യ പ*ഷ ത ര ഞ എടതത ണ. അവ ചട ഒര ത ടയണ യ രന. A3 കടയചട അകതകയറ എടതതല. ത ടയ ൽ ന ണ A3 കത " ക എടതത."

13. PW2 is also an activist of the political party CPI who participated in the procession. It was deposed by PW2 that after the procession passed the point of the shop of the first accused, he heard a commotion from behind and when he rushed to that place, he saw the occurrence. The version of PW2 as regards the occurrence was in tune with the evidence given by PW1. PW3 is not a person who participated in the procession. PW3 is also not an activist of CPI. According to PW3, he was standing near the shop of the first accused. The Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 16 :- version of PW3 as regards the occurrence was that the accused, who were standing near the shop of the first accused when the procession passed that point, talked to each other in a way that teased the participants of the procession. According to PW3, the deceased along with PW1 and Sajeer then went towards the barber shop after detaching themselves from the procession and questioned the accused about their conduct and beat the first accused. According to PW3, it was then that the first accused along with the third accused went inside the shop and came out with a pair of scissors. The relevant evidence reads thus:

".........എന വർ Barber shop-ന മന ൽ ന കള യ കന ര ത യ ൽ സ സ ര കനത കണ. ജ ഥകടനപ യ ഏറവ ന ല യ വ പ ദ അയ ന സജ റ വര കയ യ രന. വ പ ദ Barber shop-ൽ അടത ചചന എന ട കള യ കനത എന പച ദ ച ചക ണ രത ഷ ച അട ച. ആ സമയത രത ഷ സപമഷ (ബ ബകടചH പജഷൻ കടകള ൽ കയറ ത ര ചക കത കയമ യ വന."

As regards the event that took place thereafter the evidence tendered by PW3 was consistent with the evidence tendered by PWs 1 and 2.

14. Among the remaining witnesses examined, only the evidence tendered by PW12, PW16 and PW17 needs to be referred to for the purpose of resolving the points Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 17 :- formulated for decision. PW12 was the doctor who conducted the postmortem examination on the body of the deceased and issued Ext.P5 postmortem certificate. The ante-mortem injuries 1, 2 and 4 found by PW12 on the body of the deceased at the time of post-mortem examination as deposed by her are as follows:

1. Incised penetrating wound 3.5x1.5cm obliquely placed on the left side of front of chest, its upper inner sharply cut end was 4.5cm outer to midline and 14cm below the collar bone.

The other end was rounded. The chest cavity was seen penetrated through the fourth intercostal space and terminated in the chamber of right ventricle (2.5x0.2x0.5cm) after cutting through the pericardium. The wound was directed backwards and to the right for a total minimum depth of 3.2cm.

2.Incised penetrating wound 2x0.7cm oblique on the left side of front of chest, its upper inner end was 3cm outer to midline and 10cm below the collar bone. Both ends of the wound were sharply cut. The chest cavity was seen penetrated through the third intercostal space and terminated in the chamber of left ventricle(2x0.5x1.5cm) after cutting through the pericardium. The wound was directed backwards and to the right for a total minimum depth of 4.2cm. The injury no.(1) and (2) were in the same oblique line and were 1.3cm apart. The left chest cavity contained 730 ml of fluid blood. The lung was partially collapsed. Pericardial cavity contained 30ml of fluid blood and blood clots.

xxx xxx xxx

4. Incised wound 3.1x3x0.2cm oblique on the right side of chin its upper inner end 3cm outer to midline. The opinion of PW12 as to the cause of death was that the death was due to the penetrating injury sustained to the chest. It was added by PW12 in her deposition that injuries 1 and 2 Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 18 :- are independently, or in combination, sufficient to cause death in the ordinary course. After examining MO2 pair of scissors, PW12 deposed that injuries 1 and 2 can be caused by the same. Similarly, after examining MO1, it was deposed by PW12 that injury 4 could be caused by a weapon like the same. In cross-examination, it was clarified by PW12 that injuries 1 and 2 can be caused in a single infliction if the blade portion of the weapon is open.

15. PW16 was the police officer who conducted the investigation in the case. PW16 deposed that during interrogation in the custody of the police, the first accused informed PW16 that he has hidden a pair of scissors in the teak plantation at a place called Kottamukku and when he was taken to that place as guided by him, he took out from that place MO1 pair of scissors and the same was seized by PW16 as per Ext.P6 mahazar. Similarly, it was deposed by PW16 that during the interrogation, the third accused informed him that he has hidden a pair of scissors in the teak plantation at a place near Villumala Kani Settlements and when he was taken to that place as guided by him, he took out MO2 pair of Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 19 :- scissors from that place and the same was seized by PW16 as per Ext.P4 mahazar.

16. PW17 was the Medical Superintendent attached to St.Joseph Mission Hospital, Anchal. PW17 deposed that during 2010, one Dr.Rajasekharan was working as Casualty Medical Officer in the said hospital, and that he is acquainted with the signature of Dr.Rajasekharan. It was deposed by PW17 that on 16.05.2010, Dr.Rajasekharan examined PW1 and issued Ext.P31 wound certificate. According to PW17, the injury noted on PW1 by Dr. Rajasekharan at the time of examination was a contusion with abrasion over left temperoparietal area of scalp 8x3 cm and the cause of the injury was recorded by him as "ജ ഥയൽ ചKടകചവ പറക ൽ ന വനച ലർ ആയധങൾ ഉ പയ ഗച ആകമ ചതൽ വച". PW17 opined that the said injury was not a grave one.

17. The above discussed is the evidence in the case. The first and foremost question to be examined is whether the conclusion arrived at by the Court of Session based on the said evidence that the prosecution has succeeded in establishing the complicity of accused 1 to 3 in Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 20 :- the crime beyond reasonable doubt, is sustainable in law. Although there are few minor and trivial inconsistencies and contradictions in the evidence as regards the complicity of accused 1 to 3 in the crime as also the overt acts committed by them, according to us, the evidence is consistent, and we do not find any reason to doubt the veracity of the same. We are, therefore, in complete agreement with the finding rendered by the Court of Session that the prosecution has succeeded in establishing the complicity of accused 1 to 3 in the crime, beyond reasonable doubt.

18. The next question is whether the Court of Session was justified in holding that accused 1 and 3 committed the crime in furtherance of the common intention shared by them. The Court of Session did not accept the case of the prosecution that the accused formed themselves into an unlawful assembly and committed the crime in prosecution of the common object of that assembly. It was thereafter that the Court of Session came to the conclusion that accused 1 and 3 committed the crime in furtherance of the common intention shared by them. As submitted by the learned counsel for the Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 21 :- first accused, it is permissible for the court in appropriate cases to convict the accused invoking Section 34 IPC, if it is found that the prosecution failed to establish its case that the accused committed the crime in prosecution of the common object of an unlawful assembly. But, the pointed question is whether the facts of the present case would justify such a conclusion. As noted, the prosecution has no case that the subject crime is a premeditated one. The specific case of the prosecution itself is that accused 1 to 3 attacked the deceased and others when the deceased and others questioned them in front of the shop of the first accused which is a little away from the road, after detaching themselves from the procession, for having teased and hurled offensive words against them. It is also the specific case of the prosecution that in the course of the verbal altercation that took place thereafter, the deceased beat the first accused with his hands and it was thereafter, the sequence of events which led to the death of the deceased occurred. There is no satisfactory evidence in the case to hold that the accused used offensive words against the deceased and others especially since it is admitted that the injured Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 22 :- persons had not disclosed to the police, the particulars of the offensive words used by the accused. No doubt, there is satisfactory evidence to show that the accused teased the participants of the procession and howled at them while the procession was moving. Be that as it may, the proved facts reveal that the move on the part of the deceased and others to go near the place where the accused were standing, was an unexpected one. Likewise, the conduct on the part of the deceased beating the first accused was also an unexpected one. The evidence indicates that it was at that point of time that the accused started attacking the deceased and others. We do not think that in a case of this nature, it could be held conclusively that the attack of accused 1 and 3 on the deceased was in furtherance of the common intention shared by them to commit the murder of the deceased, especially when the overt acts attributed to each of them were committed immediately following the unexpected moves on the part of the deceased. At the most, what could be inferred is that accused 1 and 3 wanted to prevent the deceased from attacking the first accused further. That does not mean that Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 23 :- accused 1 and 3 shared the common intention to commit murder of the deceased. It is apposite in this context to refer to a paragraph from the decision of the Apex Court in Virendra Singh v. State of M.P., (2010) 8 SCC 407. The relevant paragraph reads thus:

"Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" imply a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in Amrik Singh v. State of Punjab [(1972) 4 SCC (N) 42 :

1972 Cri LJ 465] .

underline supplied Needless to say, the Court of Session acted illegally in invoking Section 34 IPC to convict the first accused for the act committed by the third accused. If that be so, accused 1 and 3 can only be convicted for the individual overt acts committed by them. As far as the first accused is concerned, the overt act proved against him is only that he inflicted an incised wound Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 24 :- having the dimension of 3.1 x 3 x 0.2 cm on the right side of the chin of the deceased with MO1 pair of scissors. The first accused, in the circumstances, can be convicted only for the offence punishable under Section 324 IPC.

19. As noticed, the overt act attributed to the second accused is that he hit on the head of PW1 with a stone. As found by us, the complicity of the second accused in the crime cannot be doubted. The contention raised by the learned counsel for the second accused that the stone with which the second accused attacked PW1 was not recovered is not a ground to hold that the finding rendered by the Court of Session in this regard is unsustainable, when the evidence tendered by PW1 is reliable and convincing. Similarly, the contention raised by the learned counsel for the second accused that no corresponding injury was sustained by PW1, is incorrect. As noted, PW17 has categorically stated in his evidence that on examination of PW1 by Dr.Rajasekharan attached to St.Joseph Mission Hospital, Anchal, he found a contusion with an abrasion over the left temperoparietal of the scalp of PW1, measuring 8x3 cm. In the light of the evidence Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 25 :- tendered by PW1 and PW17 as also Ext.P31 wound certificate, we do not find any illegality in the finding rendered by the Court of Session that the second accused is guilty of the offence punishable under Section 324 IPC.

20. The next question revolves around what offence was committed by the third accused. The third accused has no case that the act committed by him would not amount to murder defined under Section 300 IPC. The contention advanced by the learned counsel for the third accused is only that the act, if any, committed by the third accused was one done in the exercise of his right of private defence and he is, therefore, not liable to be convicted. No doubt, every person has a right to defend not only his own body but also the body of any other person, against any offence affecting human body. But, the said right is subject to the restrictions contained in Section 99 IPC. Section 99 IPC clarifies that 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. Section 100 IPC provides that the right of private defence of the body extends, under restrictions mentioned in Section 99, Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 26 :- to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be any of the descriptions enumerated therein. Seven categories of cases are mentioned in Section 100, of which only categories "First" and "Secondly" are relevant in the context of the present case. Category First is cases involving assault which may reasonably cause the apprehension that death will otherwise be the consequence of such assault and category Secondly is cases involving assault which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. "Assault" as defined in Section 351 including illustration (a) to the Section reads thus:

"351. Assault.--Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.

Explanation.--Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.

Illustrations Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 27 :-

(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z. A has committed an assault.

               (b)        xxxx

               (c)        x x x x."

In the case on hand, having regard to the evidence let in by the prosecution, it can certainly be held that the deceased had not only assaulted the first accused but also voluntarily caused hurt to him. But, the question is whether the assault committed by the deceased was sufficient to cause a reasonable apprehension among the accused that death or grievous hurt will otherwise be the consequence of such assault.

21. It is difficult to judge the nature of apprehension which a person, in a given case, reasonably entertains in such circumstances requiring him to act on the spur of the moment when he finds himself or another assaulted, by a number of persons and such situations have to be judged in the light of what happens on the spur of the moment at the spot and keep in view of the normal course of human conduct as to how a person would react under such Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 28 :- circumstances in a sudden manner within an instinct of self- preservation. It is trite that such situations have to be judged from the subjective point of view of the person concerned who is confronted with such a situation at the spot and cannot be subjected to any microscopic and pedantic scrutiny [See Wassan Singh v. State of Punjab, (1996) 1 SCC 458]. It is also trite that the burden of establishing the plea of private defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of materials on record. In determining that question of fact, the court must consider all the surrounding circumstances and if the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. It was held by the Apex Court in Buta Singh v. State of Punjab, (1991) 2 SCC 612 that a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants. It was also held by the Apex Court in the said case that in moments of excitement and disturbed mental Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 29 :- equilibrium, it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended by him. Where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high powered spectacles or microscopes to detect slight or marginal overstepping [See James Martin v. State of Kerala, (2004) 2 SCC 203]. The facts of the case need to be appreciated keeping in mind the said principles.

22. There is nothing on record to indicate that the deceased and injured carried any weapon with them when they detached themselves from the procession and proceeded to the scene of occurrence in front of the shop of the first accused. Even though it has come out in evidence that participants of the procession carried flags of their political party tied to poles, it is not clear from the materials as to whether the deceased and his companions namely, PW1 and Sajeer carried flags tied to poles when they proceeded to the Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 30 :- scene of occurrence after detaching themselves from the procession. It has also come out in evidence that the deceased and his companions were part of a group of about 75 individuals who participated in the procession with flags of their political party tied to poles. In other words, it could be held without an iota of doubt that it is on the strength of persons who participated in the procession that the deceased and his companions questioned the accused on their conduct in teasing and howling at them. Similarly, it can also be held that it is on the strength of persons who participated in the procession that the deceased went to the extent of beating the first accused for, even assuming that the accused and others teased the deceased, PW1 and Sajeer and howled at them, one is not expected, having regard to the common course of natural events and human conduct to beat the person who teased them. We take this view also for the reason that even though it is alleged by the prosecution that the accused hurled offensive words at the deceased and others, what was deposed by PW3 was only that the accused talked in such a way so as to tease the participants of the procession when the procession Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 31 :- was going on. Yet another reason for us to hold so is that PW1, who deposed that the accused used offensive words at the deceased and others, conceded in cross-examination, that he had not disclosed the offensive words allegedly used by the accused while giving his statement to the police. There can be no doubt to the fact that the conduct of the deceased in beating the first accused provoked the first accused and it was under that circumstance that the first accused went inside his shop and took out a pair of scissors from there to attack the deceased and others. However, it is not clear from the materials as to whether the first accused was justified in his conduct to the above extent to protect his body from the attack of the deceased and others at that stage. Be that as it may, as noted, it was at that stage that the third accused took out MO2 pair of scissors from the scene of occurrence. True, the evidence tendered by the prosecution witnesses is not consistent as regards the place from where the third accused secured the pair of scissors. While it was deposed by PW1 that even the third accused took the pair of scissors from the scene of occurrence, the stand taken by PW3 in his evidence was that Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 32 :- he took out the said weapon from the shop of the first accused. Be that as it may, the benefit of that doubt should certainly go in favour of the accused. Inasmuch as it is admitted by the prosecution that the deceased caused hurt to the first accused, we have no doubt in our minds that the situation at the scene at the relevant point of time was such that it was necessary for the accused to repel the force as part of self defence and they were justified under that circumstance to have had invoked their right of private defence. The decision of this Court in Thomas @ Thomachan (supra) cited by the learned Public Prosecutor was a case where the allegation against the accused was that he criminally trespassed into the residence of the victim and caused his death by stabbing the victim with a knife. The contention put forward by the accused was that the deceased attempted to assault him with bricks. It was in that circumstances, this court took the view that even if the contention of the accused is accepted for the sake of arguments, still the accused cannot plead his right of private defence against the above assault since it was he who commenced the commission of the crime of criminal trespass Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 33 :- by trespassing into the property of the deceased. The said judgment, according to us, may not have any application to the facts of the present case. In the case at hand, merely because the accused teased the participants of the procession and howled at them, even assuming the same to be true, according to us, it cannot be said that the accused are aggressors. For such trivial acts, no one would react in the manner in which the deceased and others reacted, namely to detach themselves from the procession and hit the first accused in front of his shop.

23. At the same time, inasmuch as the deceased and others were unarmed, we are of the view that the third accused exceeded the right of private defence available to him for, while exercising the said right, the act shall not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended [See Sikandar Singh v. State of Bihar, (2010) 7 SCC 477]. Exception 2 to Section 300 IPC provides that 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 Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 34 :- 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. The fact that there was no premeditation on the part of the third accused to cause the death of the victim cannot be disputed. In the nature of the occurrence that took place, according to us, it cannot be contended that the third accused had any intention of causing more harm than was necessary for the purpose of defence, especially since there was no motive for him to have had inflicted such an injury on the deceased. In the above circumstances, according to us, the case on hand is one that would fall within the scope of Exception 2 to Section 300 IPC. If that be so, the third accused could have been convicted only under Part I of Section 304 IPC.

24. Coming to the sentence part, having regard to the totality of the facts and circumstances of the case, according to us, the appropriate sentence to be inflicted on the first accused for the offence committed by him under Section 324 IPC is imprisonment for a period of six months and the appropriate sentence to be inflicted on the second accused is Crl.Appeal Nos.931 of 2017 and con. cases 2024:KER:78549 -: 35 :- imprisonment for a period of two months. Coming to the offence committed by the third accused under Part I of Section 304 IPC, according to us, the appropriate sentence to be inflicted on him is imprisonment for a period of ten years and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of one month.

25. In the result, the appeals are allowed in part, altering the conviction of the first accused to the offence punishable under Section 324 IPC and sustaining the conviction of the second accused under Section 324 IPC and also altering the conviction of the third accused to Part I of Section 304 IPC. The sentence passed against accused 1 to 3 will also stand modified as indicated in paragraph 24 above.

The bail bond, if any, executed by the second accused will stand cancelled. Registry is directed to communicate the above order forthwith to the concerned prison, where accused 1 and 3 are undergoing incarceration.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.PRATHEEP KUMAR, JUDGE.

YKB

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