Madras High Court
Pushpam vs State By Inspector Of Police on 3 July, 2003
Author: M. Chockalingam
Bench: M. Chockalingam
JUDGMENT M. Chockalingam, J.
1. The sole appellant/accused, who was charged, tried and found guilty under Section 304(2) and sentenced to undergo four years R.I., has filed this appeal.
2. The short facts necessary for the disposal of this appeal can be stated as follows:
a) The appellant, Pushpam was residing at Alanvilai for more than 2 decades. She borrowed a sum of Rs.500/- from the deceased Balasubramania Nadar, was was aged about 70 years. But, the accused defaulted to repay the same along with interest. Hence, the deceased used to make demand whenever he was returning home from his shop. There were occasions that the deceased had humiliated the accused as to the inability to repay the loan amount. On 1.3.1994 at about 9.00 p.m. when the accused was alone in her thatched house, the deceased came there and demanded money. Raging over the same, the accused with an intention to commit murder, invited him inside the house on the pretext of giving the said amount. When the deceased enter inside the house, the accused poured boiling water on his chest and cut him with btl;Lf;fj;jp indiscriminately. The deceased, who sustained grievous injury, fell down. Not satisfied with the same, the accused gave him cut injury on his head and on different parts of his body. The deceased succumbed to injury instantaneously. The whole occurrence was witnessed by P.Ws.1 to 3.
b)P.W.1, Rethinapandian went to Eranial police station and gave a complaint under Ex.P.1 to P.W.9, the then Head Constable of Eranial Police Station. On the strength of which, a case was registered by P.W.9 in Crime No.60/94 under Section 302 I.P.C. Ex.P.9, printed F.I.R. was despatched to the concerned Court along with Ex.P.1 complaint. P.W.11, Selvaraj, Inspector of Police, on receipt of the copy of complaint at about 3.30 a.m. On 2.3.1994 took up investigation, proceeded to the spot, made inspection in the presence of P.W.4 and one Francis and prepared Ex.P.2 Observation Mahazar and Ex.P.14 rough sketch. He examined all the witnesses and recorded their statement and the place of the occurrence was photographed. Photographs were marked as M.O.8(series) and negatives were marked as M.O.7(series). P.W.11 conducted inquest on the dead body in the presence of the witnesses and panchayatdars and prepared Ex.P.15, inquest report. On requisition made by the Investigating Officer, P.W.6, the Medical Officer attached to Kulachal Government Hospital conducted autopsy on the dead body and found the following external injuries:
1) tyJ gf;f :K:l;od; gf;fj;jpy; xU btl;Lf;fhak; 5 br/kP x 3 br/kP x 3 br/kP/
2) tyJ nky; g[$j;jpy; xU btl;Lf;fhak; 3 br/kP x 2 br/kP x 2 br/kP/
3) jiyapy; tyJ gf;fk; ? 2 ,l';fspy; btl;Lf;fhak; 2 br/kP x 1 br/kP x 1 br/kP/
4) tyJgf;f fGj;jpy; ,Ue;J gpd; KJF jz;L tiu btl;Lf;fhak; 15 br/kP x 10 br/kP x 5 br/kP/ mt;tplj;jpy; cs;s rijfs;. vYk;g[. euk;g[fs;. ,uj;jf;FHha;fs; mWgl;L fhzg;gl;lJ/
5) ,lJ gf;f be";rpypUe;J ,lJ gf;f fGj;J. ,lJ gf;f gpd; jiy tiu btl;Lf;fhak; ? gyKiw btl;od; nky; btl;lg;gl;Ls;sJ/ me;j ,lj;jpYs;s rijfs;. vYk;g[. euk;g[fs;. ,uj;jf; FHha;fs; midj;Jk; mWgl;L nky; njhy; bjh';fypy; fGj;J bjh';fpf; bfhz;oUe;jJ 15 br/kP x 10 br/kP x 5 br/kP/
6) ,lJ gf;f fPH; jhilapy; xU btl;Lf;fhak;/ 5k; ek;gh; fhaj;Jld; ,ize;J fhzg;gLfpwJ/
7) tyJ gf;f fhiu vYk;g[ gFjpapy; xU btl;Lf;fhak; 2 br/kP x 1 br/kP x 1 br/kP/
8) be";rpy; njhy; chpe;J fhzg;gl;lJ/ P.W.6 opined that the deceased would appear to have died of multiple injures due to shock and haemorrhage and has given Ex.P.8 Post mortem certificate. All the M.Os. including clothes, which were recovered from the dead body were despatched to Court with a requisition for chemical analysis. P.W.12 Inspector took up further investigation of the case. He arrested the appellant/accused on 6.3.1994 in the presence of the witnesses. She volunteered to give a confessional statement, which was recorded by P.W.12, Investigation Officer. Pursuant to the same, the accused produced M.O.1 btl;Lf;fj;jp in the presence of the witnesses, which was recovered by the Investigating Officer under Ex.P.5 Atachi. He also recovered M.O.5 Saree and M.O.6 Petticoat of the accused under Ex.P.6 Atachi in the present of the same witnesses. On requisition of the Investigation Officer all the M.Os. were sent for chemical analysis and the reports were marked as Exs.P.12 and P.13. On completion of the investigation, P.W.12, Inspector of Police filed a charge sheet against the appellant under Section 302 I.P.C.
3. In order to prove the charges levelled against the appellant/accused, the prosecution has examined 12 witnesses and marked 15 exhibits and 13 M.Os. When the accused was questioned under Section 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. The accused has stated that the witnesses were falsely implicated in this case and she has further stated that in order to save herself and her chastity, she has no option than to attack the deceased with M.O.1 at the time of occurrence. No defence witnesses were examined. On consideration of the rival submissions and scrutiny of the materials available, the lower court found the accused guilty though not under Section 302 I.P.C., but under Section 304(2) I.P.C. and sentenced to undergo R.I. for four years. Hence, this appal has been filed.
4. Arguing for the appellant the learned counsel made following submissions:
The prosecution mainly relied on the evidence of P.Ws.1 to 3, the eye witnesses. The Court below thoroughly disbelieved their evidence. In the instant case, the accused herself has stated that in order to save herself and her chastity, she had no option than to attack the deceased with knife, which was committed only in exercise of private defence, that was very well available to her. From the evidence available, it would be very clear that the deceased was on good health though 70 years old and he went over to the house of the accused at about 9.00 p.m. by breaking open the door and got entry into the house and he attempted to rape the accused. The accused, in order to save herself, poured hot water on his chest. Even then she found that the deceased did not stop in his attempt. Under such circumstances, she had no other option than to attack him with knife, which caused his death. Though the lower court has accepted the theory of private defence, has found that she has exceeded her limit in exercise of private defence. The lower court was not correct in that regard. In support of his contention, the learned counsel relied on the following two decisions:
1) 1998-2-L.W.(Crl.) 684 (RAMAKRISHNAN VS. STATE REP. BY INSPECTOR OF POLICE, ERODE, PERIYAR DISTRICT)
2) 1991 CRI.L.J. 2566 (PRAKASH CHANDRA AND OTHERS VS. THE STATE OF RAJASTHAN) In view of the same, the accused is entitled to for acquittal, and hence, the accused should be acquitted of the charges levelled against her.
5. Opposing the contentions of the appellant's side, the learned Government Advocate would contend that the only point that arose for consideration before the lower court was whether the appellant has exceeded her private defence by causing death of the deceased by attacking him with M.O.1 btl;Lf;fj;jp ; that it is pertinent to point out that she has given 8 blows on the deceased; that it is an admitted fact that at first she only poured hot water on his chest; that even if the deceased attempted to rape the accused, she should have been satisfied by pouring hot water on his chest, which in the ordinary course would suffice, but she has exceeded her limit by attacking him with M.O.1; that the post-mortem certificate would reveal that 8 cut injuries were found on the body of the deceased, which would be indicative of the fact that she has well exceeded her limit in exercise of private defence, and hence, the lower court was perfectly correct in finding the accused guilty under Section 304(2) I.P.C. Hence, the judment of the lower court has got to be sustained.
6. After careful consideration of the rival submissions and scrutiny of the materials available, this Court is of the considered view that the case of the appellant has got to be accepted. The gist of the prosecution was the deceased lent Rs.500/- to the appellant, which he was demanded then and there. On the date of occurrence at about 9.00 p.m., he went to the house of the appellant, where she was alone. It is true that the lower court has disbelieved the evidence of P.Ws.1 to 3. But, from the evidence of P.W.3 it would be clear that on hearing sound P.W.3 came out and saw that the door of the accused was found broken, and thus, it would be indicative of the fact that the deceased has got entry into the house illegally at about 9.00 p.m. when the accused was alone. The next fact, which remains to be stated was that the accused poured hot water on the chest of the deceased. The case of the accused was that the deceased attempted to commit rape, which constrained her to pour hot water. It remains to be stated that no one could expect the accused to keep the hot water ready to pour on the deceased. Hence, the illegal act of the deceased should have constrained her to pour hot water on his chest and this would follow by the assault of the accused on the deceased by inflicting eight injuries with M.O.1 btl;Lf;fj;jp . She has categorically spoken to the fact at the time of Section 313 Cr.P.C. questioning that in order to save her personal life and chastity, she had no option than to attack him with M.O.1 btl;Lf;fj;jp . Under the stated circumstances, the Court is of the considered view that in order to save her personal life and chastity, the accused had no option than to attack him with M.O.1 btl;Lf;fj;jp .It remains to be stated at this juncture that in the instant case the deceased has gone at 9.00 p.m. to the resident of the accused,when she was alone.All the above would clearly indicate that the the case of the accused was that in order to save her chastity,she had no option than to attack him with MO.1 and the same cannot be said to be in any way exceeded her private defence available under Section 100 IPC. Section 100 IPC. extends the right of private defence of the body to voluntary causing of death or any other harm to the assailant for the offence which occasions the exercise of right be of the following description:
"That the assailant was with the intention of committing rape/or with intention of kidnapping or abducting."
7. In the instant case, the facts and circumstances would clearly indicate that the said deceased had gone to the house of the middle aged lady at about 9.00 p.m. by breaking open the door and got entry into the house with an intention to commit rape and he has also attempted to rape her. Under such circumstances, she in exercise of private defence attacked the deceased with M.O.1 btl;Lf;fj;jp and the same cannot be said to be in any way exceeded her right of private defence, which was very well available to her. The lower court has clearly found that the deceased attempted to rape her and in order to save her chastity, she attacked him, but she exceeded private defence. This Court is of the view that considering the facts and circumstances of the case, which is discussed above, the lady in no way exceeded her private defence, and thus, she was well within her limit of private defence, which was available to her. Hence, this is a fit case to accept the defence.
8. In the result, the criminal appeal is allowed setting aside the judgment of conviction and sentence by the court below. The appellant/accused is acquitted of the charges under Section 304(2) of I.P.C. Bail bonds, if any, executed by the appellant/accused shall stand cancelled.