Madras High Court
Gunasekaran vs State By on 27 July, 2018
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 20.07.2018 PRONOUNCED ON : 27.07.2018 CORAM: THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN Crl.A.777 of 2011 Gunasekaran .... Appellant Vs State by Inspector of Police, Anaimalai Police Station, Coimbatore District. (Crime No.214 of 2010) .... Respondent Prayer:- Criminal Appeal filed under Section 374(2) of Cr.P.C, praying to set aside the conviction imposed in judgment dated 12.11.2011 made in S.C.No.264 of 2010 on the file of the First Additional District and Sessions Court, Coimbatore. For Appellant : Mr.N.Manokaran For Respondent : Ms.Prabavathi Ganeshram Additional Public Prosecutor JUDGMENT
This appeal is arising out of the judgment dated 12.11.2011 made in SC.No.264 of 2010, on the file of the First Additional District and Sessions Judge, Coimbatore. The appellant was convicted and sentenced to undergo three years rigorous imprisonment with fine of Rs.5,000/- in default to undergo 3 months rigorous imprisonment for the offence under section 304(II) of IPC.
2. The case of the prosecution is that the deceased Kaliappan @ Sornakaliappan married the accused's daughter Malathi and gave birth to a male child Gowtham. Due to some misunderstanding, the deceased and the said Malathi lived separately. In the mean time, the said Malathi got married with one Shanmugam. Her son Gowtham is living with the accused, who happens to be his grandfather. While being so, the deceased used to visit his son, and the accused also permitted him to see his son in his house and also in the common place. On 18.04.2010 at about 9.00 p.m., the deceased came to the accused house to see his son in a drunken mood. He scolded with the accused for the another marriage of her daughter and as such he has spoiled his life. Therefore the accused with an intention to kill the deceased had taken a wooden log and attacked the deceased on his head. He fell down and even thereafter, the accused attacked him indiscriminately and as such he died on the spot.
3. PW-1 lodged a complaint on 19.04.2010 at about 2.00 p.m., before the Special Sub-Inspector of Police, PW-16. After receipt of the same he registered the F.I.R., in Crime No.214 of 2010 for the offence under section 302 of IPC. F.I.R was marked as Ex.P-17. It was handed over to the Inspector of Police, PW-18 for investigation. He investigated the case and prepared observation mahazar and rough sketch marked as Exs.P-2 and P-22. He conducted inquest on the deceased body and prepared the inquest report and marked as Ex.P-23. Thereafter on his requisition, PW-17, the Doctor conducted postmortem and the postmortem report marked as Ex.P-19 and viscera report was marked as Ex.P-20 and his final opinion was Ex.P-21.
4. After completing the investigation, PW-18 handed over the entire case to PW-19. After examination of all the witnesses PW-19, filed his final report for the offence under Sections 302 and 506(ii) of IPC. The trial court had taken cognizance of the offence under sections 506(ii) and 302 of IPC as against the accused and questioned him under Section 313 Cr.P.C. The accused denied the charges and pleaded not guilty. The prosecution examined PWs-1 to PW-19 and marked Exs.P.1 to P.23 and produced material objects 1 to 9. The accused marked Ex.D1 as the defence material. After affording liberty of hearing to the charges, the learned Trial Judge acquitted the appellant / accused for the offence under sections 506(ii) and 302 of IPC. But the learned Trial Judge has convicted and sentenced the appellant under section 304(II) of IPC and sentenced him as above mentioned, as against which the appellant preferred this appeal.
5. The learned counsel for the appellant would vehemently contend that it cannot be said that the accused committed crime for the offence under section 304(II) of IPC. The entire quarrel between the deceased and the accused started when the deceased was in a drunken-mood and when the deceased went to attack his own son by picking up a wooden log. As such, the accused in self defence and in order to protect his grandson robbed the wooden log from the deceased and attacked him. Therefore he had no intention to kill the deceased and the entire occurrence took place only to save his grand son that too by way of self defence.
6. Further he would contend that the learned Trial Judge rightly acquitted the appellant that the right of self defence was practised by the accused when he attacked the deceased, but held that the accused crossed his limits to exceed himself the right of self-defence when attacking the deceased. When the trial court acquitted him as a case of self-defence, there is absolutely no excess or crossing the limits to take right of self-defence. As such, he is liable to be acquitted from all the charges.
7. Further the learned counsel contended that the stand taken by the trial court is absolutely false and no witnesses had seen that the accused chased deceased and attacked. Further no one spoken about the distance between the accused house and the Scene of Occurrence. When it being so, no question of chasing the deceased by the accused and had attacked him. Therefore the prosecution failed to prove the charges and the accused is entitled for acquittal and prayed to allow this appeal. He relied upon the judgment reported in (2010) 2 SCC 333 (DARSHAN SINGH Vs. STATE OF PUNJAB AND ANOTHER) and in (2015) 6 SCC 268 (RAJ SINGH Vs. STATE OF HARYANA AND OTHERS).
8. Per contra, the learned Additional Public Prosecutor appearing for the respondent vehemently opposed the arguments of the learned counsel for the appellant and submitted that the conclusion of the trial court itself is wrong and the appellant is liable to be convicted for the offence under section 302 of IPC. The entire evidence of the prosecution would show that the appellant committed the offence under section 302 of IPC and there is no possibility for the Trial Court to come to the conclusion that the accused had taken himself the right of self-defence. PWs-1 to PW-3 deposed that when the deceased came to the house of the accused to see his son, the accused scolded him with filthy languages and he attacked the deceased with a wooden log. Therefore he is liable to be convicted for the murder charge. Even then, the trial court showed leniancy to the accused and convicted only under section 304(II) of IPC and as such there for confirmation of sentence and conviction imposed against the appellant.
9.Heard the arguments advanced by Mr.N.Manokaran, learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the State.
10. It is seen from the evidence of PW.1 that the son of the deceased was brought up by the accused and the deceased used to visit his son in the house of the accused. On 18.04.2010, when the deceased went to the accused house to see his son, PWs.2 and 3 had also went along with the deceased to the house of the accused and seeing them the accused had beaten the deceased with a wooden log immediately and deceased fell down and died. Pws.2 and 3 also reiterated the same of PW-1. Whereas the PW-4, had deposed that as follows:
Kjy; tprhuiz ehd; fhspahg[uj;jpy; trpf;fpnwd;. ehd; 18/4/2010 md;W ,ut[ Rkhh; 9 kzpf;F ehd; tPl;oy; otp ghh;j;Jf; bfhz;oUe;njd;/ fhspag;gd; rj;jk; nghl;Lf;bfhz;oUe;jhd;/ mtd; khkdhh; Fznrfud; ghh;j;J rj;jk; nghl;Lf;bfhz;oUe;jhd;/ M$h; vjphpjhd; Fznrfud;/ Fznrfud; mg;nghJ rhg;gpl;Lf;bfhz;oUe;jhd;/ fhspag;gd; rj;jk; nghl;Lf;bfhz;oUe;jhd;/ Fznrfud; ehd;jhd; ,ut[ tuntz;lhk; vd;W brhy;ypa[s;nsdh Vd; md;whlk;Foj;Jtpl;L te;J lhh;r;rh; bra;fpwha; vd;Wbrhd;dhd;/ fhspag;gd; mtd; igaid ifiag; gpoj;J ,Gj;jhd;/ mth; igad; mg;nghJ Fznrfud; kidtp tp$ayl;RkpnahL epd;Wbfhz;oUe;jhd;/ fhspag;gd jpz;izapypUe;j fl;ilia vLj;J igaid mof;fg;nghdhd;/ Fznrfud; fl;ilia gpL';fp fhspag;gid Kfj;jpy; 3. 4 moj;jhh;/ fhspag;gd; fPnH tpGe;J fy;ypy;mogl;L jiyapy; gpd;dhy; mogl;lJ/
11. Therefore, the incident took place when the deceased was drunken at the time of occurrence and there was some quarrel between the accused and the deceased. In view of the evidence of PWs.1 to 4, the deceased used to come to the house of accused to see his son. If the accused, had an intention to kill the deceased, the deceased would not have visited the house of accused very often. Further, PW-4 being the neighbour of the accused, categorically deposed that, when the deceased was trying to attack his son, the accused robbed the wooden log from the deceased and attacked the deceased to protect his grandson. It is also very curious to note that the grandson of the accused and the wife of the accused who were present at the time of occurrence, were not examined by the prosecution.
12. Further in the questioning under section 313 (1)(3) of Cr.P.C., the accused specifically pleaded as follows:
vdJ kUkfd; fhspag;gd; Fog;gHf;fk; kpFe;jth;/ vdJ kfs; khyjpf;Fk; mtUf;Fk; gpur;ridfs; Vw;gl;L fle;j 2009k; Mz;L fhspag;gd; ,wg;gjw;F Xh; Mz;L Kd;g[ gphpe;Jtpl;ldh;/ mjd;gpwF mth;fsJ kfd; bfsjk; vdJ ghJfhg;gpy; tsh;e;J te;jhd;/ khyjp kWkzk; bra;J bfhz;L jpUg;g{hpy; trpj;J te;jhh;/ ,we;Jnghd fhspag;gd; mof;fo kfd; bfsjik te;J ghh;j;Jtpl;L bry;thh;/ mjw;F ehd; ve;j jila[k; bra;jjpy;iy/ fle;j 18/04/2010 md;W ,ut[ Rkhh; 8/30 kzpf;F ehd; rhg;gpl;Lf; bfhz;oUe;njd;/ mg;nghJ fhspag;gd;. bfsjik ghh;g;gjw;fhf te;jhh;/ mg;nghJ mth; kpft[k; Foj;jpUe;jhh;/ bfsjik th tPl;Lf;F nghfyhk; vd;W Tg;gpl;lhh;/ mjw;F bfsjk; ehd; tukhl;nld; vd;W Twptpl;L vd; kidtp gpd;dhy; ngha; epd;W bfhz;lhd;/ mjd;gpwF fhspag;gd; bfl;lthh;j;ijfs; ngrpf; bfhz;L rz;il nghl;lhh;/ ehd;. eP';fs; Foj;jpUf;fPwPh;fs;/ jfuhW bra;a ntz;lhk; ngha;tpL';fs; vd;W Twpndd;/ mjd;gpwF fhspag;gd; kpft[k; nfhgg;gl;L bfhz;L mUfpy; ,Ue;j Rkhh; 4 mo ePsKs;s fl;ilia vLj;Jf; bfhz;L bfsjik nehf;fp. eP tukhl;lhah. cd;id bfhd;dhj; jhd; MFk; vd;W brhy;ypf; bfhz;L mof;f te;jhh;/ ehd; jLf;fnt jpkpwpf; bfhz;L bfsjik mof;f fl;ilia X';fpf; bfhz;L Xodhh;/ ehd; ntW tHpapy;yhky; fl;ilia gpL';fp bfsjik ghJfhg;gjw;fhf fhspag;gd; Kfj;jpy; Rkhh; ,uz;L Kd;W mofs; bfhLj;Jtpl;nld;/ fhspag;gd; gpd;g[wk; tpGe;jnghJ bghpa fy;ypy; mogl;L Kh;r;irahfptpl;lhh;/
13. Therefore the accused specifically pleaded his self defence to protect his grandson, who attacked the deceased. PW-17, Doctor who conducted postmortem of the deceased, deposed that the death was due to shock and haemorrhage. The injuries sustained by the accused also corroborated with the evidence of PWs.1 to 4. Even though the medical evidence supported the case of the prosecution, when the deceased fell down on the first attack of the accused, he fell down on the stone and sustained head injury on the back of his head. Therefore he died due to shock and haemorrhage. Further, there is no evidence to state that the accused had chased the deceased about 25 feet and attacked him.
14. It is seen from the evidence of PW-18 that the distance between the place of occurrence and the house of the accused is about 25 feet. It is very curious to note that to corroborate the said evidence noone had deposed about the place of occurrence and the distance of the house of the accused. It is not the case of the prosecution that the accused chased the deceased and attacked him. Pws.1 to 4 categorically deposed that in the house of the accused, occurrence took place by a single blow, the deceased fell down and died. The rough sketch Ex.P.22 is not corroborated by any of the witness.
15. Further the learned for the appellant relied upon the judgment reported in (2010) 2 SCC 333, (DARSHAN SINGH Vs. STATE OF PUNJAB AND ANOTHER) wherein the Hon'ble Supreme Court held as follows:
SCOPE AND FOUNDATION OF THE PRIVATE DEFENCE
24. The rule as to the right of private defence has been stated by Russel on Crime (11th Edn., Vol.1, p.491) thus:
"..... a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict between them he happens to kill his attacker, such killing is justifiable."
25. When enacting sections 96 to 106 of the Indian Penal Code, excepting from its penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful aggressions, the Legislature clearly intended to arouse and encourage the manly spirit of self-defence amongst the citizens, when faced with grave danger. The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by this court there is nothing more degrading to the human spirit than to run away in face of danger. The right of private defence is thus designed to serve a social purpose and deserves to be fostered within the prescribed limits.
26. Hari Singh Gour in his celebrated book on Penal Law of India (11th Edition 1998-99) aptly observed that self-help is the first rule of criminal law. It still remains a rule, though in process of time much attenuated by considerations of necessity, humanity, and social order. According to Bentham, in his book `Principles of Penal Laws' has observed "the right of defence is absolutely necessary". It is based on the cardinal principle that it is the duty of man to help himself.
27. Killing in defence of a person, according to the English law, will amount to either justifiable or excusable homicide or chance medley, as the latter is termed, according to the circumstances of the case.
28. But there is another form of homicide which is excusable in self-defence. There are cases where the necessity for self- defence arises in a sudden quarrel in which both parties engage, or on account of the initial provocation given by the person who has to defend himself in the end against an assault endangering life.
29. The Indian Penal Code defines homicide in self-defence as a form of substantive right, and therefore, save and except the restrictions imposed on the right of the Code itself, it seems that the special rule of English Law as to the duty of retreating will have no application to this country where there is a real need for defending oneself against deadly assaults.
30. The right to protect one's own person and property against the unlawful aggressions of others is a right inherent in man. The duty of protecting the person and property of others is a duty which man owes to society of which he is a member and the preservation of which is both his interest and duty. It is, indeed, a duty which flows from human sympathy. As Bentham said:
"It is a noble movement of the heart, that indignation which kindles at the sight of the feeble injured by the strong. It is noble movement which makes us forget our danger at the first cry of distress..... It concerns the public safety that every honest man should consider himself as the natural protector of every other."
But such protection must not be extended beyond the necessities of the case, otherwise it will encourage a spirit or lawlessness and disorder. The right has, therefore, been restricted to offences against the human body and those relating to aggression on property.
31. When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also settled position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a right to take revenge.
32. Right of private defence of person and property is recognized in all free, civilsed, democratic societies within certain reasonable limits. Those limits are dictated by two considerations : (1) that the same right is claimed by all other members of the society and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrong done to them or to punish the wrong doer of commission of offences.
33. A legal philosopher Michael Gorr in his article "Private Defense" (published in the Journal "Law and Philosophy" Volume 9, Number 3 / August 1990 at Page 241) observed as under:
"Extreme pacifists aside, virtually everyone agrees that it is sometimes morally permissible to engage in what Glanville Willams has termed "private defence", i.e., to inflict serious (even lethal) harm upon another person in order to protect oneself or some innocent third party from suffering the same".
34. The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.
58. The following principles emerge on scrutiny of the following judgments:
(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminus with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.
59. The High Court in the impugned judgment has reversed the trial court's judgment of acquittal and convicted the accused. Admittedly, Darshan Singh fired from his 12-bore double barrel gun which had a number of pellets. The High Court disbelieved the trial court's version that Gurdish Singh and Gurdev Singh did not receive fire arm injuries because no pellet or pellets were recovered from their bodies. In the impugned order, the High Court without giving any cogent reasons has set aside the well considered judgment of the trial court.
60. In our view, when a shot was fired from a 12-bore gun and if no pellet was recovered, then the trial court is not wrong in arriving at the conclusion that the injuries were not caused by a fire arm. The High Court on this point discarded the reasoning of the trial court without any sound basis. The High Court gave the finding that "since it is a case of dual version, one given by the complainant, who appears to be a truthful witness when he has not concealed the role of his father and explained the injury of Bakhtawar Singh. On the contrary, the accused persons have come with untenable defence." While arriving at this conclusion, the High Court in the impugned judgment has not followed the consistent legal position as crystallized by various judgments of this Court. The High Court or the Appellate Court would not be justified in setting aside a judgment of acquittal only on the ground that the version given by the complainant is more truthful.
61. In a case of acquittal, if the trial court's view is a possible or plausible view, then the Appellate Court or the High Court would not be justified in interfering with it. It is the settled legal position that there is presumption of innocence and that presumption is further fortified with the acquittal of the accused by the trial court. The Appellate Court or the High Court would not be justified in reversing the judgment of acquittal unless it comes to a clear conclusion that the judgment of the trial court is utterly perverse and, on the basis of the evidence on record, no other view is plausible or possible than the one taken by the Appellate Court or the High Court.
62. The High Court has unnecessarily laid stress on the point of recovery of the gun at the instance of Darshan Singh. The accused has not denied the incident. The case of the defence is that their case is covered by the right of private defence. Darshan Singh in his statement under Section 313 of the Code of Criminal Procedure, 1908 has admitted that he had fired from his licensed gun in his right of private defence. The High Court without properly comprehending the entire evidence on record reversed the well reasoned judgment of the trial court.
63. In the instant case after marshalling and scrutinizing the entire prosecution evidence, we are clearly of the view that the trial court's view is not only the possible or plausible view but it is based on the correct analysis and evaluation of the entire evidence on record. Rationally speaking, no other view is legally possible. Consequently, this appeal is allowed and the impugned judgment of the High Court is set aside and the judgment of acquittal of the trial court is restored.
16. In another judgment relied upon by the counsel for the appellant reported in (2015) 6 SCC 628, (RAJ SINGH Vs. STATE OF HARYANA AND OTHERS) the Apex Court held as follows, Plea of self-defence:
15. The contention of the appellant is that he is not an aggressor and since the complainant party was in possession of lethal weapons which caused reasonable apprehension in the mind of the appellant as to the threat to his life and his two brothers and therefore the appellant had no option but to fire from his gun and the alleged act of the appellant cannot, in any manner, be said to be in excess of his right of private defence.
16. The right of private defence is codified in Sections 96 to 106 IPC. Section 96 declares that nothing is an offence which is done in exercise of the right of the private defence. Section 97 states that every person has right of defence of person as well as of property. Section 100 describes the situations in which the right of private defence of body extends to the extent of voluntarily causing of death. To claim right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The law of private defence does not require that the person assaulted or facing apprehension of an assault must run away for safety. It entitles him to defend himself and law gives him right of private defence. There is no right of private defence where there is no apprehension of danger. Necessity of averting and impending danger must be present, real or apparent.
17. Elaborating the scope of right of private defence, in Dharam And Ors. vs. State of Haryana, (2007) 15 SCC 241 in paragraphs (18) and (19) it was held as under:-
18. Thus, the basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. We may, however, hasten to add that the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. [pic]Answer to such a question depends upon a host of factors like the prevailing circumstances at the spot, his feelings at the relevant time, the confusion and the excitement depending on the nature of assault on him, etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence.
19. It is trite that the burden of establishing the plea of self-defence is on the accused but it is not as onerous as the one that lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea of self-defence to the hilt and may discharge the wonus by showing preponderance of probabilities in favour of that plea on the basis of the material on record (see Munshi Ram v. Delhi Admn.(AIR 1968 SC 702), State of Gujarat v. Bai Fatima((1975) 2 SCC 7) and Salim Zia v. State of U.P.(1979) 2 SCC 648).
18. In Bhanwar Singh & Ors. vs. State of M.P., (2008) 16 SCC 657, in paragraphs (50) and (60) it was held as under:-
50. The plea of private defence has been brought up by the appellants. For this plea to succeed in totality, it must be proved that there existed a right to private defence in favour of the accused, and that this right extended to causing death. Hence, if the court were to reject this plea, there are two possible ways in which this may be done. On one hand, it may be held that there existed a right to private defence of the body. However, more harm than necessary was caused or, alternatively, this right did not extend to causing death. Such a ruling may result in the application of Section 300 Exception 2, which states 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 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 other situation is where, on appreciation of facts, the right of private defence is held not to exist at all.
60. To put it pithily, the right of private defence is a defence right. It is neither a right of aggression or of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. Necessity must be present, real or apparent. (emphasis added) The same view is also expressed in the cases of Biran Singh vs. State of Bihar, AIR 1975 SC 87, Wassan Singh vs. State of Punjab,(1996) 1 SCC 458, Sekar alias Raja Sekharan vs. State represented by Inspector of Police, T.N., (2002) 8 SCC 354, Buta Singh vs. State of Punjab, AIR 1991 SC 1316 and James Martin vs. State of Kerala, (2004) 2 SCC 203.
17. Even though the learned Trial Judge accepted the plea of self-defence, finally he convicted the accused for the offence under section 304(II) of IPC for the reason that the accused was chasing the deceased about 25 feet from his house and attacked. When the Trial Court came to the conclusion and accepted the plea of self-defence, the conviction under section 304(II) of IPC, cannot be sustained.
18. It is seen from the evidence and records that no offence is proved and established as against the appellantfor the offence under section 302 of IPC or under section 304(II) of IPC. No other view is legally possible except the right of self defence.
19. In view of the reasons assigned above, the Criminal Appeal is allowed and the conviction and sentence imposed by the learned First Additional District and Sessions Judge, Coimbatore, in the judgment dated 12.11.2011 made in SC.No.264 of 2010 are set aside and the appellant / accused is acquitted of all charges. Fine amount if any, paid shall be refunded to the appellant immediately and bail bond, if any, executed shall stand cancelled.
27.07.2018 Index:Yes/No Internet:Yes/No Speaking order/non-speaking order drl To
1. The First Additional District and Sessions Court, Coimbatore.
G.K.ILANTHIRAIYAN, J., drl PRE DELIVERY JUDGMENT IN CRL.A.777 OF 2011 27.07.2018