Karnataka High Court
State By K.M. Doddi Police, Mandya ... vs Siddegowda And Others on 31 May, 1999
Equivalent citations: ILR1999KAR3373, 1999(4)KARLJ662
Author: B.K. Sangalad
Bench: B.K. Sangalad
JUDGMENT Kumar Rajaratnam, J.
1. This is an appeal against acquittal preferred by the State. The State being aggrieved by the judgment and the order of acquittal passed by the Trial Court in S.C. 3 of 1998 in acquitting the respondents-accused of the offences under Sections 143, 148, 302 read with Section 149 or 302 read with Section 34 of the IPC and Section 324 read with Section 149 or 324 read with Sections 34 and 326 read with Section 149 or 326 read with Section 34 of the IPC has preferred this appeal against acquittal.
2. The case of the prosecution is that all the accused persons formed themselves into an unlawful assembly at about 9.30 p.m. on 21-8-1987 and armed with deadly weapons assaulted Chikkavenkata and committed his murder. The accused caused injuries to P.Ws. 1 to 3, 6, 7 and 8 in the scuffle, The prosecution case further is that the accused attempted to put up a shed in the land in Survey No. 111/1 of Yaladahalli Village (hereinafter referred to as the disputed land) and when the deceased party came and objected to the accused putting up the shed it is alleged that the accused assaulted the deceased and other witnesses. The Trial Court acquitted the accused on various grounds. None of the eye-witnesses who are all closely related to each other speak about the injuries sustained by accused 1 to accused 3. However, P.W. 8 who is an independent witness had admitted that the accused were also injured in the fight.
3. Before we deal with the injuries on the accused it is relevant to refer to the injuries on the deceased. P.W. 27 is the doctor who conducted the post-mortem examination on the dead body of the deceased. He noticed in all five injuries on the deceased. Two injuries were incised in nature on the right third inter-castal space and also on the left lateral side of clavical acromial. The doctor gave the opinion that death was due to the injury to the vital organ. The post-mortem report is marked as Ex. P. 25. P.W. 1 gave the complaint which is at Ex. P. 1.
4. At this stage it would be convenient to refer to the injuries sustained by the accused. P.W. 27 is the doctor who examined accused 2 immediately after the occurrence. According to P.W 27, accused 2 sustained a lacerated wound on the middle of the forehead. According to accused 2 it is alleged that he was assaulted by the complainant and other witnesses. Ex. D. 4 is the wound certificate of accused 2.
5. P,W. 27 also speaks about injuries on accused 3. The doctor noticed the incised wound in the right side of the occipital region. Ex. D. 5 is the wound certificate with respect to accused 3. accused 1 also was injured in the occurrence. Ex. D. 6 is the wound certificate with respect to accused 1. The doctor P.W. 27 stated that he noticed a lacerated wound on the occipital region and cut injury on the right angle of mandible. In this case, admittedly, none of the eye-witnesses who are closely related to the deceased admit about injury to the accused.
6. P.W. 3 is the Investigating Officer. He has specifically stated that he saw accused 1 having been admitted in the hospital and being treated in the same hospital where the prosecution witnesses were also admitted. P.W. 3, however, states that he did not verify from accused 1 as to how he sustained the injury.
7. We have in this case the wound certificates Exs. D. 4 to D. 6 with respect to the injuries sustained by accused 1 to accused 3. These injuries cannot be said to be minor and superficial which do not require any sort of explanation. They are lacerated wounds on vital parts of the body. These injuries which had not been explained by the prosecution in the facts and circumstances of this case would indicate that the genesis of the case has been suppressed.
8. With regard to the "disputed land" there is ample material to show that land in question where the occurrence took place belonged to accused 1. Accused 1 purchased the land under a sale deed Ex. P. 2 dated 20-12-1985. It was argued on behalf of the State that the same land was subsequently purchased by P.W. 2. The Trial Court disbelieved the documents subsequently created to show that P.W. 1 had in fact purchased the piece of land. The Trial Court held that accused 1 was in possession of the so-called "disputed land" when the occurrence took place. At paragraphs-18 and 19 of the Trial Court's judgment, the Trial Court has given cogent reasons as to why the subsequent document after the sale deed Ex. P. 2 cannot be relied upon and has been created by the prosecution only for the purpose of showing that the "disputed land" was in the possession of the prosecution party.
9. With regard to the "disputed land" P.W. 1 admitted that accused 1 had purchased this "disputed land" and that he (P.W. 1) purchased the same land subsequently. P.W. 1 also admitted that accused 1 had filed a complaint against P.W 1 and his elder brother stating that the prosecution party were interfering with the "disputed land" which was in the possession of accused 1. P.W. 1 also admitted that accused 1 had filed a suit and obtained an order of injunction against P.W. 1 and others. After considering all the materials on record, the Trial Court rightly came to the conclusion that the "disputed land" was in the possession of accused 1 and that it was the prosecution party who came and tried to assault the accused and disturbed the possession of accused 1. In this scuffle the deceased sustained injuries and died. Accused 1 to accused 3 also sustained injuries. All this happened at about 11 in the night. It is also not in dispute from the materials on record that accused 1 to accused 3 had also sustained injuries on vital parts.
10. With regard to the recoveries the Trial Court did not accept the recoveries on the ground that there was no mention about the recoveries from the accused on the basis of their voluntary statements in the case diary. The Trial Court has elaborately dealt with this aspect at paragraphs 29 to 39 of its judgment.
11. It would not be necessary to go through with each of the recoveries since the Trial Court has held that the accused were in lawful possession of the "disputed land", (ii) serious injuries on the accused had not been explained by the prosecution; (iii) the recoveries cannot be relied upon. In these circumstances, the Trial Court was pleased to give the benefit of doubt to the accused and acquitted the accused.
12. Mr. Bhagwan, the learned Counsel for the accused-respondents relied on the following judgments.-
(i) Lakshmi Singh and Others v State of Bihar;
(ii) Yogendra Morarji v State of Gujarat;
13. The learned Counsel for the State Mr. Srinivasa Reddy relied on the judgment in Baljit Singh and Another v State of Uttar Pradesh, and submitted that if the Sessions Judge misread the evidence and acquits the accused, the High Court would be justified in correcting the error by reversing the acquittal and finding the accused guilty.
14. In Lakshmi Singh's case, supra, the Supreme Court has held that in a murder case, the non-explanation of the injuries sustained by the accused at the time of the occurrence or in the course of the altercation is a very important circumstance from which the Court can draw an inference that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented the true version. The Supreme Court has stated that there may be cases where the non-explanation of injuries by the prosecution may not affect the prosecution cases.
15. The Supreme Court in Yogendra Morarji's case, supra, has dealt with the right of private defence exhaustively. At Paragraph 13 the Supreme Court has held as follows:
"The Code excepts from the operation of its penal clauses large classes of acts done in goods faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations. The most salient of them concerned the defence of body are as under: Firstly, there is no right of private defence against an act which is not in itself an offence under the Code; Secondly, the right commences as soon as -- and not before -- a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is conterminous with the duration of such apprehension (Section 102). That is to say, right avails only against a danger imminent, present and real. Thirdly, it is a defensive and not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence. (Section 99). In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weight 'with golden scales' what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bona fide defender 'if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack'. It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack. Fourthly, the right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Section 100, For our purpose, only the first two clauses of Section 100 are relevant. The combined effect of these two clauses is that taking the life of the assailant would be justified on the plea of private defence; if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, a person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self-defence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. This principle is also subject to the preceding rule that the harm or death inflicted to avert the danger is not substantially disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled. Fifthly, there must be no rule or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailent; Sixthyly, the right being, in sense, a defensive right, does not accrue and avail where there is 'time to have recourse to the protection of the public authorities'".
16. At paragraph 14 the Supreme Court has held that even if the plea of self-defence is not taken it does not neutralise or shift the general burden that lies on the prosecution to prove the case beyond reasonable doubt. At paragraph 15 the Supreme Court held that the defence plea may consist of oral or documentary evidence, admissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross-examination and the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, 1973.
17. At paragraph 16 the Supreme Court held that there may be cases where despite the failure of the accused to discharge his burden under Section 105, the material brought on the record may in the totality of the facts and circumstances of the case, be enough to induce in the mind of the Court a reasonable doubt with regard to the mens rea requisite for an offence under Section 299 of the Code.
18. In this case, admittedly, there is enough material to show that accused 1 to accused 3 were injured in the course of the occurrence and had sustained injuries by deadly weapons which has not been explained by the prosecution. P.W. 1 himself has admitted that the disputed land was purchased by accused 1 and that accused 1 had obtained an injunction against P.W. 1. The occurrence is alleged to have taken place at 11 in the night while presumably accused 1 was putting up a shed in his land. It cannot be ruled out that the prosecution party went to obstruct the accused from putting up a shed. Taking all these factors into account the Trial Court was pleased to acquit the accused and gave the accused the benefit of doubt.
19. In this appeal against acquittal it cannot be said that the judgment of the Trial Court was perverse and there are no compelling reasons to interfere with the order of acquittal. Accordingly, the appeal preferred by the State is dismissed.