Kerala High Court
Abdul Rasheed vs State Of Kerala on 22 June, 2012
Bench: K.Hema, Babu Mathew P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS.JUSTICE K.HEMA
&
THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH
FRIDAY, THE 22ND DAY OF JUNE 2012/1ST ASHADHA 1934
CRL.A.No.471 of 2008
-------------------------
SC.686/2005 of II ADDL. SESSIONS COURT, KOZHIKODE
CP13/2005 of J.M.F.C., KUNNAMANGALAM
.........
APPELLANT/PETITIONER:
ABDUL RASHEED, S/O.ALI,
CONVICT NO.5690,
CENTRAL PRISON, KANNUR
BY ADV. SRI.P.V.KUNHIKRISHNAN
RESPONDENT/RESPONDENT:
STATE OF KERALA.
BY PUBLIC PROSECUTOR SMT.MADHUBEN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.Hema & Babu Mathew P.Joseph, JJ.
------------------------------------------
Crl.A.No.471 of 2008
------------------------------------------
Dated this the 22nd day of June, 2012
JUDGMENT
Hema, J.
The appellant was charge sheeted for offence under Section 302 of Indian Penal Code ('IPC' for short) and after trial, he was convicted and sentenced by Additional Sessions Court under Section 302 IPC to undergo imprisonment for life and to pay a fine of ` 5,000/- and in default, to undergo rigorous imprisonment for six months. The said conviction and sentence are challenged in this appeal.
2. Prosecution case, briefly: On 24.12.2003 at about 5 p.m., while deceased Moideen Koya was going to the market along with PW1, who is his minor son, accused, who is the younger brother of the deceased, came from opposite side and stabbed the deceased with MO1-knife. A scuffle ensued for the knife and in the course of scuffle, both of them fell down to the paddy field which is lying at a lower level from the road. The CRA 471/08 2 accused took a granite stone from the side wall and hit the deceased with the same. He also poured acid on his face from a bottle carried by him.
3. The accused committed the above acts, pursuant to the dire enmity he had towards the deceased, on account of some property dispute. The deceased sustained injuries and he was rushed to the hospital by the control room police. But, he died at the hospital on the same day. A first information statement was given to the police by PW1. FIR was registered and after investigation, a charge sheet was laid against the accused for offence under Section 302 of IPC.
4. To prove the prosecution case, prosecution examined PW1 to PW20, marked Exts.P1 to P22 and MOs 1 to 14. The accused did not adduce any evidence, either oral or documentary. While questioned under Section 313 of Code of Criminal Procedure ('the Code' for short), accused stated that he was assaulted by the deceased on several occasions on account of some problems relating to property. The deceased stabbed him CRA 471/08 3 with a knife and he caught hold of it when accused sustained an injury on his hand. There was a scuffle between the two and they fell into the paddy field. He did not know what happened thereafter.
5. The trial court, on an analysis of evidence accepted prosecution case and held that accused intentionally caused murder of the deceased. The plea of right of private defence was rejected.
6. Heard both sides. Perused the records. The points to be considered in this appeal are:
1. Whether accused intentionally caused the death of deceased Moideen Koya, by stabbing him with MO1, hitting him with a stone on his head and pouring acid on his face, as alleged by prosecution?
2. Whether the conviction and sentence passed against appellant are sustainable?
7. Points 1 and 2: The fact that deceased died due to the incised wound sustained by him, which is described in detail in Ext.P7-postmortem certificate, is proved by prosecution by the medical evidence. Therefore, the question is whether such injury CRA 471/08 4 was inflicted by the accused as alleged by prosecution. The prosecution is mainly relying upon evidence of PWs 1 to 3 to prove the incident.
8. PW1 is an alleged eye witness to the entire incident. He is the son of deceased Moideen Koya. He was aged about 15 years at the time of incident. According to him, the incident happened on 24.12.2003 at 5 p.m. while he was going from his house along with his father for purchasing household articles to Karanthoor on Ovungara-Vadakkethala Road. His father's brother, who is the accused in this case, came from the opposite side of the road and on seeing him, his father moved to the side of the road and continued to walk.
9. While so, accused proceeded towards his father and caught hold of his shirt stating that he would finish his greed for property, drew MO1-knife and stabbed the deceased on his stomach. PW1 further deposed that a push and pull ensued and both of them fell into the paddy field. When the accused continued stabbing, PW1 asked him not to kill his father. On CRA 471/08 5 hearing all these, PW2 and one Abbas came to the scene. On seeing them, accused threw off his knife, took a granite stone from the side of the bund and hit the deceased on his head with both the hands. At this stage, PW1 ran to his house and informed his mother. He also deposed that he came to know later that accused had also poured acid on the face of his father.
10. To corroborate PW1's evidence, PW2 and PW3 were examined. PW2 gave evidence that on 24.12.2003, when he was returning after purchasing articles from Karanthoor on Ovungara- Vadakkethala road, he saw the accused stabbing the deceased with MO1 on the chest from the side of the road. He also deposed that accused hit the deceased with stone on his chest and also poured some liquid from a bottle on the face of the deceased. He went to the house of deceased and informed his wife.
11. PW3 deposed that on 24.12.2003 at about 5 p.m., when she was coming back from the house of her sister on Ovungara-Vadakkethala road, she found some people looking towards the paddy field and she found deceased Moideen Koya CRA 471/08 6 lying down with bleeding injuries. She also saw the accused hitting the deceased with a stone and also pouring something on his face, when he asked for water. She was perplexed by this sight and she went to her house. She is distantly related to the deceased as well as the accused.
12. The accused put forward a plea of private defence and while questioned under Section 313 of the Code, he stated that on earlier occasions also the deceased had attacked him. The accused sustained an injury on his hand, when deceased stabbed the accused and the latter caught hold of the knife and a scuffle ensued. Therefore, we will consider the merit of the said plea before analysing the evidence of alleged eye witnesses in detail.
13. In support of defence plea, learned defence counsel submitted that PW17-the Assistant Sub Inspector of Police admitted in cross-examination that accused had an injury on his hand. PW17 took the accused to custody from the place of occurrence and he was also sent for examination to the Medical College Hospital. But, prosecution did not produce any medical CRA 471/08 7 records and thereby, prosecution suppressed the relevant facts which are favourable to the accused. The prosecution also failed to explain the injury sustained by the accused. He also argued that non-explanation of injury itself is fatal to prosecution and an adverse inference is to be drawn against the prosecution.
14. Learned defence counsel also argued that accused need establish the plea of private defence only on the scale of probabilities. He also argued that as per Section 100 IPC, a person will be justified in even causing death of another, in exercise of right of private defence and hence, accused is entitled to the benefit under Section 100 IPC. He deserves an acquittal from this Court, it is submitted. He also cited the decisions reported in Lakshmi Singh v. State of Bihar (AIR 1976 SC 2263), Surendra v. State of Maharashtra ((2006) 11 SCC
434) and Raghbir Singh v. State of Haryana ((2008) 16 SCC
33), in support of his arguments.
15. On the facts of this case, it is necessary to understand the scope of right of private defence under Section 100 IPC, CRA 471/08 8 before entering into a discussion on the evidence to decide whether accused committed the alleged overt acts or not. Section 100 IPC (excluding the portion which is not relevant for the purpose of deciding this case) reads as follows:
"100. When the right of private defence of the body extends to causing death-The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, 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 of any of the descriptions hereinafter enumerated, namely :
Firstly - Such an assault as may be reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Secondly- Such an assault as may
reasonably cause the apprehension that
grievous hurt will otherwise be the
consequence of such assault;
Thirdly- xxxx;
Fourthly- xxxxx;
Fifthly - xxxx;
Sixthly- xxx"
16. Section 100 IPC lays down that right of private defence of the body extends even to voluntary (not "voluntarily", as defined under Section 39 IPC) causing of death, under certain CRA 471/08 9 circumstances, which are specifically referred to in firstly to sixthly in Section 100. Therefore, if an accused proves that requirements under Section 100 IPC exist, he can be acquitted of offence of murder, by extending the benefit under Section 100 read with Section 96 IPC, even if he voluntary causes death to another.
17. On a joint reading of Sections 96, 97, 99, 100 and 351 IPC, it is clear that if the Court has to extent the benefit under Section 100 IPC to an accused, who voluntary caused death to another, the following facts must be established: i) that deceased was the assailant, ii) that deceased committed the offence of "assault", iii) that such assault by the deceased occasioned in exercise of private defence by accused and iv) that such assault committed by the deceased was such as may reasonably cause apprehension that death or grievous hurt would be the consequence, had he not exercised his right of private defence.
CRA 471/08 10
18. Thus, one of the most important requirement under Section 100 IPC is commission of offence of assault by deceased.
If the accused who voluntary causes death to another, he has to establish that deceased, as the assailant, committed the offence of "assault" of the nature stated in firstly or secondly of Section 100 IPC and then alone, he will be entitled to the benefit under Section 100 IPC. The offence of "assault" is defined under Section 351 IPC as follows:
"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".
19. Section 105 of Evidence Act, 1872 ('Evidence Act', for short) lays down that the burden lies on the accused to prove CRA 471/08 11 existence of the circumstances which will bring his case within the General Exceptions. Section 105 of Evidence Act reads as follows:
"105. Burden of proving that case of accused comes within exceptions.--
When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."
20. From a plain reading of Section 105 of Evidence Act itself, it is clear that when a person is accused of any offence and he claims benefit of any of the "General Exceptions" in the IPC, the burden is on him to prove existence of circumstances which bring his case within such General Exceptions. But, as rightly argued by learned defence counsel, it is well settled that such burden of proof by accused under Section 105 is not as heavy as that on prosecution. The accused need only prove the circumstances on preponderance of probabilities. CRA 471/08 12
21. However, the court shall apply its mind to a very important aspect in this context. Section 105 of Evidence Act contains an expression "court shall presume the absence of such circumstances". Section 4 of Evidence Act lays down that wherever it is directed by the said Act that the court "shall presume" a fact, it shall regard such fact as "proved", until and unless it is "disproved". Therefore, on a combined reading of Sections 4 and 105 of Evidence Act, it follows that whatever circumstances accused proposes to prove to bring his case within Section 100 IPC, the court shall regard non-existence of such circumstances as "proved", until it is disproved. The court shall not only regard that such circumstances do not exist, but absence of such circumstances will be taken as proved also.
22. In Vijayee Singh v. State of U.P. ((1990) 3 SCC
190) the Supreme Court held as follows:
"It is held in Nanavati case that under Section 105 of the Act the court shall presume the absence of circumstances bringing the case within any of the exceptions, i.e. the court shall regard the non-existence of such circumstances as CRA 471/08 13 proved till they are disproved".
23. Referring to presumption under Section 105, a three- Judges-bench of the Supreme Court in K.M.Nanavati v. State of Maharashtra (1962 Supp (1) SCR 567) held thus:
"In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused; to put it in other words, the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the general exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that Section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the court shall regard the non-existence of such circumstances as proved till they are disproved" (emphasis supplied).
24. The presumption under Section 105 Evidence Act is mandatory, as indicated by the expression, "shall presume"
itself. By virtue of Section 105 coupled with Section 4 of Evidence CRA 471/08 14 Act, it is mandatory for the court to regard that circumstances which the accused may rely upon to get benefit under Section 100 IPC do not exist and such non-existence is proved. An example will make clear the scope of presumption under Section 105 read with Section 4 of Evidence Act.
25. Suppose, an accused wishes to prove that at the time of commission of offence, the weapon of offence was with the deceased to establish that he was the assailant. The court shall firstly regard that such circumstances did not exist. That is, deceased do not have the knife with him and that he was not the assailant. It shall also regard such facts, i.e., the knife was not with the deceased and he was not the assailant, are "proved". The court will believe or proceed on the supposition that knife was not with the deceased and he was not the assailant (vide "proved" in Section 3 of Evidence Act). Therefore, it follows that accused must establish from evidence and other matters before the court that circumstances which he proposes to prove to get benefit under Section 100 IPC exist, by disproving the mandatory CRA 471/08 15 presumption that such circumstances do not exist.
26. From the above discussion, it is clear that it is not very easy for the accused to prove the defence plea under Section 100 IPC. Since the court is bound to regard that circumstances which the accused proposes to prove in his favour to get benefit under Section 100 IPC do not exist and also that such non-existence is proved against him, it is actually a tough process, to discharge the burden under Section 105 of Evidence Act. This is specially so, since it involves disproving of certain vital presumption which the court shall draw against the accused under Section 105 of Evidence Act itself.
27. However, as argued by learned defence counsel, the degree of proof is not as strict as that on prosecution and accused need only discharge his burden on preponderance of probabilities. That does not mean that he need not disprove the presumption which has to be drawn by the court against him under Section 105 of Evidence Act. The accused has to prove existence of circumstances which would bring his case under CRA 471/08 16 Section 100 IPC or other General Exceptions by rebutting the mandatory presumption of absence of such circumstances, on the scale of preponderance of probabilities.
28. The burden of proof under Section 105 of Evidence Act can be discharged by the accused, either by adducing independent evidence or by relying upon the circumstances which may emerge from the evidence and other materials available in court. He may even take to his support, deliberate withholding of evidence, by prosecution, or suppression of material facts by the witnesses or prosecution, if any, to prove his defence plea under Section 100 IPC and also to rebut the presumption referred to in Section 105 of Evidence Act.
29. It is also relevant to mention that to prove the plea of private defence under Section 100 IPC, it is sufficient if the court is satisfied that "assault" committed by deceased was such that it may reasonably cause apprehension of death or grievous hurt, had the accused not exercised his right of private defence. As seen from the definition of "assault" under Section 351 IPC, a CRA 471/08 17 gesture or even a preparation on the part of deceased would be sufficient to constitute "assault" and deceased need not even attack the accused.
30. Therefore, even presence of injury on accused may not be an inevitable requirement to establish the defence plea under Section 100 IPC. Nevertheless, the gesture or preparation from the side of the deceased must be of the nature referred to in Section 351 IPC as it would cause any person present to apprehend that the one who makes such gesture or preparation is about to use criminal force to that person. Therefore, even in the absence of any injury on the accused, he may be able to prove his plea of private defence under Section 100 IPC.
31. Of course, to support the plea of private defence under Section 100 IPC, accused may make use of presence of injury, if any, sustained by him as a strong circumstance. But, if the accused is relying upon presence of injury on him as such circumstance, it must be established that he sustained injury in the course of incident in which death took place and that CRA 471/08 18 deceased committed "assault", as it may reasonably cause the apprehension that grievous hurt or death would be the consequence, had he not exercised his right of private defence. The court must be in a position to infer from the materials on record the probability or possibility of sustaining such an injury by accused in the course of incident and while deceased was acting as an assailant and committing assault, to extend the benefit under Section 100 IPC.
32. Now, we shall come to the facts of this case. As per the statement given by the accused under Section 313 of the Code, deceased stabbed him with a knife and when he caught hold of the knife, he sustained an injury on his hand. But, there is absolutely nothing on record to infer or even presume that deceased might have acted, as alleged by accused. There is also nothing on record to show that deceased had acted as an assailant or that he committed offence of assault or that such assault could occasion accused to act in exercise of right of private defence. Not even a suggestion was put to any of the CRA 471/08 19 witnesses, while they were cross-examined, that deceased had acted as an assailant and that he made any gesture or preparation which caused apprehension to any person present that he was about to use criminal force to such person.
33. A mere statement made by the accused during questioning under Section 313 of the Code that deceased stabbed the accused is not at all sufficient to extend the benefit under Section 100 IPC to him. The accused must establish from evidence and materials before the court that the alleged fact were probable. For this purpose, he may rely upon even vital suppressions, if any, made by prosecution or the witnesses of material facts. But, nothing of that sort is established in this case.
34. Even though PW4 is an independent witness (who deposed that he came to the scene and found the deceased lying down with injuries) turned hostile to prosecution, not even any question was put to this witness to bring out any circumstance to support the plea of private defence. Nothing was brought out CRA 471/08 20 even from a hostile witness that accused had an injury on his hand, which could possibly be sustained in the course of incident.
35. PW13, who is an official witness, deposed that he was working as an Head Constable in City Police Control Room and on the date of occurrence, he was on duty with the Flying Squad. According to him, he got information from the control room at about 5 p.m. that some assault was going in Ovungara- Vadakkethala road and accordingly, he proceeded to the place of occurrence and found a person lying down unconscious, having sustained injuries. He took the said injured (deceased) to the casualty of Medical College Hospital in police jeep.
36. PW13 has no case that any person other than the deceased was found "injured" at the scene. Not even any suggestion was made to PW13 to show that accused had injuries on his body when he went to the scene. PW13 had gone to the scene for the sole purpose of removing the "injured" to the hospital. Still, not even any question was put to him whether any other person (accused) was also found at the scene having CRA 471/08 21 sustained injury. If, as a matter of fact, accused had been "injured", there is apparently no reason why a person like PW13 had left the accused at the scene itself, without taking him to hospital.
37. It is also relevant to note that PW13 has not done anything in the case, except taking the deceased to the hospital. He had no role in the investigation of this case. Nothing is brought out from his evidence to show that he had any interest in the success of the prosecution or any motive against the accused to suppress an injury on him or to avoid giving him medical aid. His evidence is of independent nature even though he is an official. No questions were also put to PW13 suggesting whether he had any ulterior motive in not taking the accused to hospital for medical aid.
38. If PW13 had deliberately failed to take him to the hospital, defence would have certainly put some questions to PW13 to bring out such facts in evidence, as a circumstance to support his defence. The absence of putting such questions to CRA 471/08 22 PW13 indicates that in all probabilities, when PW13 went to the scene, accused might not have had any injury on him and that the injury, if any, must not have been sustained in the course of incident. The fact that accused was not taken to hospital by PW13 also suggests that physical condition of the accused would not have called for any medical aid.
39. Another witness PW14 deposed that he was on duty on 24.12.2003 as a Head Constable and he got a wireless message and accordingly, he went to the place of occurrence. By the time he reached the scene, he came to know that the Flying Squad had removed the deceased. He also deposed that accused was seen detained at the scene by the people of the locality. He helped the Assistant Sub Inspector of Police for taking the accused into custody and also took the accused to the police station. No question was put to this witness as to whether accused had any injury on his body when he was seen at the scene.
CRA 471/08 23
40. In this context, evidence of PW17-Assistant Sub Inspector also can be looked into. Learned defence counsel argued that presence of an injury on accused's hand is admitted by PW17 and he also deposed in chief examination itself that accused was sent to the hospital from police station. The accused is therefore, strongly relying upon his evidence as a circumstance to prove his plea of private defence. According to PW17, he got information about the assault at 5.45 p.m. and he went to the spot along with police party and on reaching there, he came to know that the Flying Squad had taken way the person who was "injured" to the hospital.
41. PW17 has no case that accused had any injury when he found the accused at the scene. It is not also clarified from his evidence whether any injury was found on accused when he was taken into custody from the scene by PW17. Of course, as pointed out by learned defence counsel, PW17 deposed that a person was found detained by the people of the locality and accused was "stained" with blood and mud. But, there is nothing CRA 471/08 24 to suggest that such blood stains were caused by bleeding from any injury sustained by him. No question was put to PW17 regarding presence of any injury on the accused when he found him at the scene.
42. On the facts of this case, there was every possibility for the accused to get stained with blood and mud at the scene. It is in evidence that deceased was profusely bleeding and accused and deceased had rolled down, hugging each other and fallen into the paddy field which was lying at a lower level from the road. In such circumstances, in the absence of any suggestion made to any of the witnesses to indicate that accused had injury which could be caused in the incident, mere presence of blood and mud on accused is not at all sufficient to hold that accused had sustained injury during the course of incident.
43. PW17 also deposed that he did not remember whether he examined the body of the accused while he was taken into custody from scene. If there was any injury on the accused while taking him into custody from the scene, PW17 would not CRA 471/08 25 have normally missed to note the same, especially since accused was found to be stained with blood at the scene. Had he been injured in the incident, there is no reason why he was not taken to hospital for affording medical aid, either by PW13 or PW17. Any way, nothing was brought out from evidence of PW17 that accused had an injury on his hand, while he was found at the scene which could be sustained in the incident at the hands of deceased.
44. It is true that PW17 deposed in court that accused was sent to hospital from the police station for medical examination, but, no medical records pertaining to the accused are produced by prosecution. Hence, it is strongly argued that an adverse inference has to be drawn against prosecution. We cannot accept this argument also. Section 114(g) of Evidence Act lays down that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The expression "withholds" in Section 114(g) is important.
CRA 471/08 26
45. 'Withhold', as per Concise Oxford Dictionary (8th Edition), means "to hold back". Only if something is available, it can be held back. So, the court must be satisfied that some evidence which is available is held back. It must also be satisfied that such evidence, if produced by a person, will go against him and that is why he is holding back such evidence from court without producing it. Only if the court is satisfied of these facts, it can draw a presumption or adverse inference under Section 114
(g) of Evidence Act. But, a mere "omission", or "failure" to produce evidence by a person or non-production of evidence may not by itself suffice to draw a presumption or adverse inference under Section 114(g) of Evidence Act. But, there is nothing on record in this case to show that medical record relating to the accused, if produced, would be unfavourable to prosecution. There is also nothing to suggest that the document contains some thing which is favourable to the accused.
46. The accused has no case that the wound certificate contains anything other than presence of injury in support of his CRA 471/08 27 case. He has no case that he made any statement to the doctor that cause of injury is the assault by the deceased or that the history recorded in the wound certificate contains any thing which is in favour of his plea of right of private defence. So, if at all medical record is produced and the doctor is examined, it may, at best, prove that accused had an injury on his hand. But the said fact is already proved in this case, as per the admission made by PW17.
47. Therefore, even if medical record is produced, it cannot be said that it will go against prosecution or that it will prove any fact which is in favour of the accused in support of his defence and that is why prosecution has withheld it. Hence, no adverse inference can be drawn against prosecution under Section 114(g) of Evidence Act only for the reason that there is omission or failure to produce the medical record. The mere non- production of medical record in this case by prosecution is of no consequence against prosecution.
CRA 471/08 28
48. Apart from this, there is nothing on record to show that the injury, which was noted by PW17 on accused, was sustained by him in the course of incident in which deceased died or that deceased committed assault as an assailant. It cannot be inferred from the records that the injury might have been caused under any of the circumstances which would bring the case of accused within the General Exception in IPC. Even though ocular witnesses were examined in this case, very strangely, none of the eye-witnesses was asked any question to bring out possibility or probability of accused sustaining an injury in the course of incident.
49. If the case of accused is that he sustained injury in the incident in which death was caused, ordinarily, a question will be put to the eye-witnesses suggesting that accused sustained injury in the course of incident. But, there is not even a suggestion that he sustained injury at the hands of deceased while committing assault. In the above circumstances, on the facts of this case, mere presence of any injury on the accused will CRA 471/08 29 not establish that it was caused while deceased was acting as an assailant.
50. A person may sustain injuries on him under various circumstances. Only if he establishes or probabilises from the materials available in court that there is a reasonable possibility or probability for him to sustain an injury at the hands of the deceased while he was acting as an assailant and committing assault and such assault occasioned him to act in private defence, presence of injury on accused will help him to support his defence under Section 100 IPC. The mere presence of injury on accused, detached from other circumstances, cannot be taken as a circumstance in favour of accused to prove his plea of private defence.
51. Unless the court is satisfied that an injury could be sustained by accused while the deceased acted as an assailant and committed assault, it may not even be necessary for the court to make any enquiry as to how the accused sustained injury. The court also need not seek any explanation from the CRA 471/08 30 prosecution as to how the accused sustained injuries. The prosecution is not bound to explain each and every injury, if any, found on the body of the accused unless there are materials on record to show that such injury has some nexus with the incident in which death was caused.
52. The burden is squarely on the accused to establish that the injury, if any, sustained by him was caused under the circumstances which occasioned him to act in right of private defence, as stated in Section 100 IPC. This is specially so, since the court is bound to draw a mandatory presumption under Section 105 IPC that the circumstances which will bring the case of accused under the General Exception (here, Section 100 IPC) do not exist and hence, the court can presume that accused did not sustain any injury in the course of incident or at the hands of the deceased.
53. It is also relevant to note that accused has also no case that he made any statement to the police that deceased assaulted him or that he sustained an injury at the hands of the CRA 471/08 31 deceased in the course of this incident. He has no case that any such allegation was made or that police failed deliberately to record his statement or register a case. There is nothing on record to show that any case was registered on the basis of the statement given by the accused against the deceased for causing the injury noted by PW17 on his body. No private complaint is also filed by him. Therefore, mere presence of injury on accused is not adverse to prosecution nor it is favourable to the accused to prove his defence.
54. While questioned under Section 313 of the Code, the accused also put forward another circumstance to support his plea under Section 100 IPC. He stated that deceased had attacked him on earlier occasions also, may be, to establish that deceased was the assailant or aggressor. But, there is absolutely nothing on record even to probabilise such allegation or assertion. On the other hand, there is evidence to show that an earlier incident had happened vice versa and accused had stabbed the deceased and he was hospitalised. A case was also CRA 471/08 32 registered against accused in respect of the said incident.
55. Apart from this, it is also pertinent to note in this context that as per evidence, the place of occurrence lies far away from the permanent place of residence of accused. PW1 deposed that accused is permanently residing in Wayanad. There is no challenge on this fact. The address of the accused shown in various documents reveal that his permanent place of residence is "Bathery, Wayanad". The arrest memo shows that as per his address, he is a resident of "Bathery" in Wayanad District which is admittedly quite far away from the place of occurrence. In the First Information Report itself accused is shown to be residing in Bathery. The accused has no case that he was not permanently residing in Wayanad during the relevant period, as stated by PW1.
56. The incident happened in Kozhikode District but the accused permanently resides in Bathery, which is situated in yet another District, (Wayanad). The incident took place on a road which leads from the house of deceased to the market and it lies CRA 471/08 33 in the locality of the residence of deceased. Therefore, deceased had occasion to go by that road whereas, accused has no explanation why he came all the way to the place of occurrence, on the date of occurrence. All the above facts and circumstances tend to negative the possibility of the deceased acting as an assailant and accused sustaining an injury in an assault committed by the deceased, which could have occasioned accused to exercise his right of private defence under Section 100 IPC.
57. However, mere failure on the side of an accused to prove the plea of private defence by itself is no reason to confirm the conviction. Irrespective of such failure, the court has to consider whether prosecution discharged its burden to prove the guilt of accused beyond reasonable doubt. Therefore, evidence adduced in this case has to be analysed to find out whether prosecution proved that accused committed the offence, as alleged by prosecution. The evidence of PWs 1 to 3 is already narrated in the earlier paragraph. Learned defence counsel CRA 471/08 34 argued that presence of PW1 at the scene is doubtful. It is submitted by him that it is brought out from the evidence of PW1 that he is studying in a school situated 40 kms away from the place of occurrence.
58. The incident happened by about 5 p.m. and it is unlikely that PW1 would reach his house by that time, it is argued. On a detailed consideration of evidence of PW1, we find that the mere fact that the school is situated 40 kms away is not at all sufficient to disbelieve PW1. There is nothing in his evidence to show whether PW1's school was working on shift or whether it was a working day for the school on the date of occurrence or whether there was any circumstance which prevented him from being at the scene by about 5 p.m. Therefore, on the ground raised, we are not inclined to doubt the veracity of evidence of PW1.
59. Learned counsel for accused pointed out a contradiction in the evidence of PW1 and PW5 to argue that PW1 would not have been present at the time of occurrence. PW5, the CRA 471/08 35 wife of the deceased, who is also the mother of PW1, deposed that on the date of occurrence, her husband had come back from Ovungara and he changed his dress and told her that he wanted to go to Feroke and he went to Feroke via Ovungara. But, according to PW1, he had gone to Karanthur market along with his father for purchasing some articles on Ovungara road.
60. We do not think that there is any contradiction, as argued. It is clear from evidence of PWs 1 and 5 that when the deceased left the house on the crucial evening, PW1 had also accompanied him. While evidence of PW1 shows that father and son proceeded on the Ovungara-Vadakkethala road, PW5 also stated that her husband had told him that he would go to Ovungara. The discrepancy in the evidence of these witnesses, if any, is only in respect of the final destination stated by the witnesses. While PW5 stated it was Feroke, PW1 said that it was Karanthur market. But that evidence reveals that deceased had to go by Ovungara. Therefore, the so called contradiction is too insufficient to discard the evidence of PW1, doubting his veracity, CRA 471/08 36 about his presence at the scene.
61. Another aspect pointed out by learned defence counsel is the conduct of PW1. According to him, PW1 did not interfere in the incident. He did not do anything during the incident and hence, his conduct is suspicious. Admittedly, PW1 was aged only 15 years at the time of occurrence and as per his evidence, he had witnessed a ghastly incident in which his father was stabbed to death by his own paternal uncle. As per his evidence, he also knew that his father was stabbed by the accused earlier and he was hospitalised. Therefore, he was aware of the conduct of accused and he would naturally expect danger from him not only to his father, but to him also personally.
62. In such a situation, it is only reasonable to hold that a boy of this age would have acted only as stated by him in his evidence. PW1 deposed that he had asked the assailant not to kill his father. Probably, this was all what a helpless boy of his age could do in a situation like this, while he saw his uncle attacking his father mercilessly. It is also to be borne in mind that PW1 saw CRA 471/08 37 people rushing to the scene, he ran to his mother. The above conduct of PW1 in running to his mother is also natural and consistent with normal conduct of a boy aged only 15 years. He might have expected consolation and comfort only from his mother in such a situation. He would also have been confident that people of the locality would take care of his father or rescue him from the clutches of the accused.
63. We find nothing strange or suspicious about such a conduct of a boy in his teens. We do not expect PW1 to intervene or overpower accused and make a counter attack on him, to rescue his father. At any rate, the alleged conduct is no reason to reject his evidence as unreliable. It is also submitted by learned defence counsel that PW1 had gone to the police station and also showed the place to the police, which is also an abnormal conduct in the circumstances of the case. It cannot be said that such conduct is strange because, he being the sole eye witness from the beginning, it is only natural for the police to ascertain such facts from him.
CRA 471/08 38
64. Anyway, no question was put to PW1 touching any of these aspects to indicate that his conduct was strange. It must also be borne in mind that though there is scientific evidence to prove that there was chemical burns on the face of deceased due to concentrated hydrochloric acid, PW1 did not even state that he saw the accused pouring acid on the face of his father, because, as per his evidence, he had run away to his mother before the incident concluded. So, it is clear that PW1 did not show any anxiety to exaggerate or state what he had not seen. PW1 is, therefore, only a safe witness to rely upon.
65. Though PW1 was cross-examined at length, nothing is brought out to discredit his version. No contradiction was brought out from his previous statements. His evidence is consistent with the medical evidence which reveals that deceased sustained injury on head by hitting with a stone, an injury on the stomach and certain other injuries which could be caused by MO1, which was identified by PW1. PW1 also stated that the knife was thrown away by the accused at the place of occurrence itself. PW17 CRA 471/08 39 deposed that MO1 was seized under scene mahazar-Ext.P14 from the scene. In such circumstances, evidence of PW1 can be safely acted upon.
66. Though PW2 gave evidence in chief examination that he saw the first stab, the hit with stone, pouring of liquid on the face of deceased by the accused, it is brought out from cross- examination that all what he had seen first was the accused and deceased lying in the paddy field. It is also brought out from his evidence that he did not know how the incident commenced and how the accused got knife in his hand or what was the cause of incident. Taking all the above facts into consideration, it is doubtful whether PW2 had seen the beginning of the incident and how it commenced.
67. It is also doubtful whether PW2 had seen the accused being hit with a stone. PW2 stated that deceased was hit on his chest with a stone, but there is no corresponding injury as per the medical evidence. May be, PW2 reached the place of occurrence towards the last stage of incident. However, for the CRA 471/08 40 sole reason that PW2 made some exaggeration regarding the first part of the incident, it cannot be said that he is totally unreliable, particularly since, there is nothing in his evidence to show that he had any motive to perjure against accused in a case of this nature.
68. Learned counsel for accused argued that evidence of PW2 cannot be looked into since his name is not shown in the First Information Statement ('FIS' for short). In the FIS given by PW1, it is stated that one Abbas had rushed to the scene on hearing the cry, but he did not mention PW2's name. It is also submitted that Abbas was not examined and his non-examination is fatal to the prosecution, he being the only independent witness named in FIS.
69. On going through the materials placed before this Court, it is seen that one Abbas is cited as a witness to speak only about part of the incident, as a person who rushed to the scene. The prosecution has no claim that he had seen the incident. Ext.P1-FIS also reveals that Abbas alone could not be an CRA 471/08 41 eye-witness to the entire incident. As per Ext.P1, several other persons had also rushed to the scene on hearing the cry and Abbas is not the sole person. Therefore, for the sole reason that Abbas was not examined, no adverse inference can be drawn against prosecution.
70. It must be borne in mind that PW1 lost his father in an unfortunate incident which he witnessed helplessly and F.I.S was given by him within a very short span of his father's death. So, omission to mention the names of all witnesses in Ext.P1 is only natural and cannot be stretched to such dimensions to reject the evidence of PW1 especially since he was not questioned about such omission.
71. Though version of PW2 regarding first part of the incident appears to be an exaggeration, we find that his evidence relating to pouring of liquid from a bottle can be acted upon provided, there is corroboration to this part of evidence from other source. However, mere omission in Ext.P1 regarding name of PW2 or some exaggerations in his evidence about first part of CRA 471/08 42 the incident is too insufficient to discard his evidence. PW2 had not even gone to the hospital or police station and he does not seem to have any interest in securing conviction against accused or to perjure against him.
72. PW3 is another eye-witness and she was cross- examined extensively. Her evidence discloses that she is related to the accused as well as the deceased and she treated both of them equally. She deposed that she found the accused hitting the deceased with a stone. She also deposed that accused poured some liquid on the face of deceased, which was taken from a bottle like MO3. She stood the test of cross-examination and there is no infirmity in her evidence which calls for a total rejection of her evidence. The evidence of the doctor-PW9 and Ext.P7-the postmortem certificate show that there was brown black areas of corroded skin over right cheek and other areas of the face. The shoulder was also having such an injury.
73. PW9-the doctor opined that the injury, which is described as injury No.4 in Ext.P4, can be caused due to chemical CRA 471/08 43 burns. The said injury was caused with a corrosive substance. Ext.P22 is the chemical analyst's report. It is reported therein that the solution in item No.2 was found to be acidic and containing chloride irons. He also deposed that it may be due to presence of hydrochloric acid and that concentrated hydrochloric acid is a corrosive substance.
74. On going through the evidence of PW2 and PW3 as a whole, it cannot be said that they were speaking falsehood before the court relating to pouring of acid. The accused has no case that PW3 deviated from the statement given to the police or that she was speaking about the incident for the first time in court. No contradiction was brought out from her evidence as against the case diary statement. In such circumstances, we believe evidence of PW2 and PW3 to hold that some corrosive substance was poured on the face of deceased by the accused, as alleged by prosecution. Their evidence is supported by medical evidence and chemical analyst's report also.
CRA 471/08 44
75. Learned defence counsel also argued that prosecution has not proved that accused had any motive to commit murder of deceased. It was submitted that according to prosecution itself, the dispute relating to the property was settled between the accused and deceased and an agreement was also executed between the parties, which is marked as Ext.P3 series. By virtue of the settlement, though originally ` 7,000/- alone was required to be given by deceased to the accused, he had to pay an amount of ` 31,000/- more. The deceased was also bound to release his right over his mother's property in favour of the accused, as per the terms of the agreement.
76. In such circumstances, it was argued that there were more reasons for the deceased to be aggrieved than the accused and hence, the motive must be on the side of the deceased to attack the accused. It is true that Ext.P3 series show that there was a compromise and ` 31,000/- was to be paid by deceased and he also agreed that his right in the property of his mother would be released in favour of accused. But, accused has no case CRA 471/08 45 that deceased failed to act upon the terms of the agreement or that he was aggrieved because of the compromise.
77. Ext.P3 agreement itself shows that ` 31,000/- was paid to the accused by the deceased and he had no resistance to pay the amount. There is nothing on record to show that deceased was compelled to enter into a compromise against his will and wish or that after entering into a compromise deceased had shown any reluctance to act upon the terms of agreement. Ext.P3 series will show that deceased had only acted in accordance with the compromise and paid the amount.
78. The accused has no case that fake receipts were created or that the endorsement on the agreement for receipt of ` 31,000/- is false. He has no case that deceased had showed any resentment to part with the money or property in favour of accused. Even while questioned under Section 313 of the Code, accused did not make any whisper that deceased had not complied with the conditions in the agreement. In such circumstances, the argument that deceased was aggrieved by the CRA 471/08 46 agreement cannot be accepted. The evidence in this case reveals that though deceased had to pay only `.7,000/- to the accused, he offered to pay much higher amount of `.31,000/- and also to release his right over his mother's property. It was done also. Despite this magnanimity of deceased, who is the elder brother, accused seems to be unhappy.
79. The attitude of the deceased was all through compromising as per evidence. It is in evidence that about nine months prior to the incident, accused allegedly stabbed deceased with a knife and he was hospitalised. A charge sheet was also filed in that case and it is Ext.P21. In spite of all these, deceased had agreed to compromise and he had also acted upon the terms of agreement and paid a considerable amount to accused and he had also released his right over his mother's property in favour of accused.
80. It is also to be noted that deceased sustained as many as 20 ante-mortem injuries and even postmortem injuries, which are three in number. This suggests that even after killing CRA 471/08 47 the deceased, accused had not stopped attacking his own elder brother. In this context also, it is relevant to bear in mind that not even a suggestion was made to any of the witnesses as to whether accused sustained any injury or he could have sustained any injury at the hands of the deceased to act in this inhuman way.
81. Taking all the above facts into consideration, we find that prosecution has proved beyond doubt that accused stabbed the deceased with MO1, hit him on his head with a granite stone and poured acid on his face and caused his death by stabbing. Though an injury was noted by PW17 on the hand of the accused, it does not cast any reasonable doubt on the prosecution case nor does it probabilise or prove the plea of private defence under Section 100 IPC, on preponderance of probabilities. At any rate, it cannot be said that the act committed by the accused in causing death of the deceased by stabbing with MO1 and causing fatal injury does not constitute an offence by virtue of Section 96 IPC read with Section 100 IPC.
CRA 471/08 48
Hence, this appeal is dismissed.
(K.Hema, Judge)
(Babu Mathew P.Joseph, Judge)
tkv/ma
CRA 471/08 49
K.Hema & Babu Mathew P.Joseph, JJ.
----------------------------------------- Crl.A.No.471 of 2008
-----------------------------------------
JUDGMENT 22nd June, 2012