Karnataka High Court
State Of Karnataka vs Dodda Hanumantha And Ors. on 2 February, 1998
Equivalent citations: 1999CRILJ658
Author: B.N. Mallikarjuna
Bench: B.N. Mallikarjuna
JUDGMENT M.F. Saldanha, J.
1. The State of Karnataka has assailed the order of acquittal recorded in favour of 8 accused in S. C. No. 26/90 by the learned Sessions Judge, Raichur on 18-9-1992 through the present appeal.
2. The allegation against the accused was that on the morning of 13-10-1989 at about 8 A. M. in Sy. No. 248 at Village Vaddepalli, that the accused persons were members of an unlawful assembly and that they had caused the death of one Rangappa. The accused were charged with having committed offences punishable Under Sections 143, 147, 148, 324, 326, 506 and 302 r/w 149, I.P.C. The ancillary charge was that in the cause of this incident the accused had assaulted P.Ws. 1 to 3 and caused certain injuries to them. The learned trial Judge after a detail analysis of the evidence, acquitted all the eight accused, principally on the ground that it was not possible to hold that the charges were established because of the various infirmities in the evidence, but the principal ground was that the material before the Court disclosed that the incident had taken place in the land belonging to the, accused and that it was extremely difficult to conclude as to which of the parties was the aggressor principally because two of the accused had sustained injuries, one of them of considerable seriousness. This appeal is directed against the judgment and order.
3. The learned Addl. S.P.P. took us through the record of the case which is rather voluminous and his principal submission was that the evidence of P.Ws. 1 to 3 does in fact* make out a conclusive case against the accused. He sought to draw support from the medical evidence and the other supportive evidence on record and he contended that the learned trial Judge has adopted an ultra strict approach while assessing the evidence and has also discredited it by comparing one head of evidence with another. His submission was that inconsistencies that have been noted in the findings are inevitable because this was an incident in which several persons have taken part on both sides and he contended that having regard to the fact that the witnesses were all villagers that minor blemishes in the evidence were to be expected. He sought to place heavy reliance on the well settled principle of law that even in cases of this type the Court must separate the grain from the chaff and he submitted that it was perfectly permissible to do this and to still hold that the charges were conclusively established. On the other hand, respondents' learned advocate pointed out to us that we have in this instance a very well considered judgment of the trial Court wherein the learned Judge has carefully analysed every head of evidence and he submitted that it is now well settled law that merely because another view may be possible, that a Court would not interfere with the earlier decision unless it is demonstrated that it is manifestly wrong or that it is perverse or that it has resulted in a total failure of justice. On the basis, of these propositions, respondents' learned advocate pointed out to us that we have in this case a situation where a small incident had occurred on the evening of 12-10-1989 when the cattle belonging to the other side strayed into the fields of the accused pursuant to which some hostility developed between the parties and it was a fall out of this incident that provoke the deceased and his brothers to go to the fields belonging to the accused on the morning of 13-10-1989. His principal submission is that it was very clear that the deceased and his brothers had come to settle the dispute and that they were the aggressors and he relied on the observations of the learned trial Judge that even though the plea of self-defence has not been specifically pleaded in this case that the defence would be available and that the Court must take into account in such a situation the fact that the accused had acted in exercise of their right of self-defence. Heavy reliance was sought to be placed on the fact that the injuries of some seriousness have been caused to two of the accused and that the prosecution has not explained these injuries. In totality, the submission was that even if the evidence of some F.Ws. inspire some confidence that this is not a case in which the accused could be convicted because there were serious lacunae in the prosecution evidence. We "need to point out here that the learned Addl. S.P.P. advanced the submission that where the evidence indicated that there was an assault and a counter-assault, as is evident from the fact that A-2 had lodged a complaint in respect of the assault on his party, that it is unnecessary for the prosecution to separately tender any explanation for the injuries. He did not dispute the fact that where the injuries of some seriousness have occurred to the accused that it is incumbent for the prosecution to be able to reconcile these with the incident, but his submission was that the present record is self-explanatory. It is difficult for us to accept this submission though it is a very inonnious one, because the law casts a specific obligation on the prosecution to explain the injuries and it is, therefore, not a matter of inference. We do not need to recount the various decisions of the Supreme Court and also of this Court wherein the principle has been well crystallised, that such an explanation must be forthcoming as otherwise, it gives rise to serious doubts in the mind of the Court. Therefore, to seek to get over this difficulty by stating that the record is self-explanatory would not be enough for the simple reason that in the absence of an explanation it would be hazardous to venture a finding on the part of the question as to which of the parties was the aggressor. The Courts have invariably taken the view that an infirmity of this type is very basic and that it ' could, on occasions, lead to fatal conclusions for the prosecution. We shall proceed to consider the merits of this appeal in the light of this situation.
4. Dealing with the most important question as to whether the accused can be said to have acted in exercise of the right of self-defence. Learned Addl. S. P. P. advanced an argument of considerable merit and substance when he re-stated the law on the point of self-defence. In support of his argument that even assuming that the deceased and his brothers came to the land of the accused and even assuming that they started the altercation, learned S. P. P. made a special point on the basis of certain significant aspects of the case. Firstly, what he submitted was that the question of numbers is important and he demonstrated to us that there were eight persons on the side of the accused whereas there were only four on the side of the deceased. His contention was that this clearly indicates that the accused had out-numbered the other side and from the nature of injuries inflicted he submitted that it was very clear that the accused got the better of the other party. His submission, therefore, was that even if the accused had originally decided to defend themselves against the attack from the deceased and his brothers, that they grossly exceeded their right and he laid emphasis on the well settled proposition of law that the right of self-defence ceases the instant the quantum and degree of force that is being used exceeds the permissible limits. To reinforce his argument, the learned Addl. S.P.P. submitted that if we look at the injuries inflicted on both sides, that it would be very clear that the accused virtually took the offensive and they battered the other side and it may be that two of them did sustain some injuries in the process .as the victims would undoubtedly have tried to fight back. The principal thrust of his argument emanates from the fact that the death has occurred on the other side and two of the other persons have also been injured which according to him indicates that they were virtually at the receiving end. He, therefore, submitted that the learned trial Judge was in error in having merely opined that the accused could be said to have acted in exercise of the right of self-defence without having done a deeper analysis of the law and facts which would demonstrate that even if they had a right to start with, that they lost this privilege the moment they exceeded the level of force that they were permitted to use.
5. Respondents' learned advocate has tried to meet this argument by submitting that once the deceased and his brothers entered the field of the accused and that too armed with sticks, that they could never be relegated to the position of victims when it can be demonstrated that they had inflicted serious injuries on the other side. His principal submission is that undoubtedly there was a free for all and that in the process one stray blow did land on the head of the deceased which turned out to be fatal. He has taken us through the evidence in order to demonstrate that in this background it is extremely difficult to conclusively hold as to which of the accused inflicted that blow. Secondly, he demonstrates to us with, some justification, that it is extremely doubtful as to whether the four women who were made accused are at all participants in the incident. As against this aspect of the matter, we have analysed the evidence very carefully and we find that there can be little doubt about the fact that four women have obviously been implicated in order to rope them into the prosecution. There is very little ground for us to accept the prosecution case that they have taken part in the incident when the only roles attributed to them are that they threw chilly powder. The result of this situation is that the charge of unlawful assembly, rioting etc. would automatically fail because the elimination of these four women would bring the number of participants to less than five. The second implication of this finding is that the liability of the accused would not devolve mechanically and equally to all of them once these charges stand quashed, because then it would have to be pointed out that they are either individually liable or liable on the basis of acting in furtherance of common intention.
6. We need to seriously deal with the interesting argument of self-defence that has been canvassed in this case. Merely because the deceased and this brothers entered the field belonging to the accused, would not ipso facto entitle the accused to the benefits of claiming the right of self-defence if it is demonstrated that the accused were the aggressors or that the accused used excessive force than what the law permits. Again the law does not proceed on the basis of a mechanical approach and, therefore, the number of persons on either side would again not be a barometer on the basis of which the law could be applied. The injuries sustained would perhaps be some sort of a guide but that again need not necessarily be conclusive because there are situations in which a mere aggressive party or a stronger one or one who acts first could perhaps inflict far more injuries than would normally take place and that too more serious in nature. The Court has relied on the basis of the totality of the record to carefully evaluate as to whether in the incident there was an attack and secondly whether in defending, the opposite party has tried to contain the attack and repel it or whether the opposite party has turned the tables on the initial aggressor and has thereafter inflicted more harm or damage than was legitimate. It is really on the basis of these principles that we would have to evaluate the submissions canvassed by the learned Addl. S. P. P. In the present instance, what we need to note is that the record very clearly indicates that it was the deceased and his brothers, principally because of the previous day's incident, who came armed with sticks into the field belonging to the accused. Even though there is no admission to this effect, judging from the cross-complaint it is quite evident that at the start of the incident it is this very party who were the aggressors. What the learned Addl. S.P.P. has tried to demonstrate to us was that this aspect of the matter falls into insignificance if it can be demonstrated that the accused thereafter took the offensive and he is absolutely right in law when he points out that there is a very clear-cut distinction between containing and repulsing the attack, and taking the offensive. The law does permit the use of a degree of force as is necessary to contain an attack or in other words to defend oneself, but the right of self-defence does not stop there because it extends to the limited extent of repulsing the attack. This is a necessary part of the exercise of the right because where a party is faced with an attack, it is insufficient to contend it unless it can be beaten back as the danger does not cease unless the latter has been accomplished. The Courts have been very clear while laying down the parameters of the law relating to self-defence, when they have pointed out that a fair and necessary degree of force can be used and that this can even be extended to instances of taking of life if the danger is so imminent that the victim reasonably apprehends danger to his own life when he does not strike back in time. All those ingredients must be pleaded and must be established. In a given instance, the Courts could apply the doctrine of the principles to a particular record and test as to whether the accused would be entitled to the benefit of that right. It has been pointed out that while evaluating the degree of force to be used, that the Court has to take a practical approach of the situation and, therefore, a party defending one's life cannot be expected to evaluate the levels of degree of force virtually in golden scales and, therefore, the law makes allowances in this regard. If, however, it is demonstrated that the victim becomes the aggressor and that having contained or repulsed the attack that the opposite (party) has virtually turned the tables on the initial aggressor and having secured the advantage or initiative took full advantage of it in inflicting more and grave injuries than were necessary, then the defending party becomes the aggressor and would clearly forfeit the right of self-defence. This precisely is the ground on which the learned Add!. S. P. P. has submitted that interference is necessary and that a conviction must be recorded.
7. We, however, find on the fact of the present are that there was no such reverse swing of the balance and that the complaint and counter-complaint and the evidence in its totality would support the fact that there was an attack and counterattack but both of these were more or less equally balanced. It is true that in the process, unfortunately, Rangappa lost his life, but on a careful consideration of the record we find that this happened in the course of the altercation itself at which point of time it would be impossible to hold as to which of the parties had the upper hand. It is precisely for this reason that we are inclined to give the benefit of doubt to the remaining accused. The charges in the present case are serious ones and we are conscious of the fact that the learned Addl. S. P. P. did submit that even if it is held that the blow to Rangappa on his head was a stray blow and that it may not attract the rigours of Section 302, I.P.C. the lesson conviction would also have serious consequences. The principles of criminal jurisprudence cannot be watered down and the fact that the prosecution has been silent with regard to the injuries on two of the accused is one of the strong circumstances that impels us to refuse interference in the present case. The facts and the law have been extremely well analysed by the learned Advocates and we have applied our minds very carefully to all the relevant aspects of the case. The fact that this appeal is against an order of acquittal is an additional ground on which this Court needs to be slow to interfere in so far as the view taken by the trial Court is certainly plausible. Also as indicated above, the law with regard to the right of self-defence does have certain subtle and finer aspects which we have enunciated while analysing the proposition and it is on the basis of these angles that correct analysis of the record has been done by us.
8. Having regard to the aforesaid situation, while holding that A-1 to 4 are entitled to the benefit of doubt and that the evidence does not establish the participation of A-5 to 8, we are of the view that the order of acquittal requires to be confirmed.
9. Appeal accordingly fails and stands dismissed. The bail bonds of the accused stand cancelled.