Kerala High Court

Jose, S/O.Ouseph vs Sub Inspector Of Police on 7 July, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE K. BABU
  WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
                     CRL.A NO. 2365 OF 2006
  AGAINST THE JUDGMENT IN S.C.NO.147/2006 OF II ADDITIONAL
                  SESSIONS COURT, ERNAKULAM
APPELLANT/ACCUSED:

          JOSE, AGED 52
          S/O.OUSEPH
          JNEZHUNGAN VEEDU, CHELAMATTOM KARA,
          CHELAMATTOM VILLAGE.

          BY ADVS.
          SRI.V.RAJENDRAN (PERUMBAVOOR)
          SRI.GEORGE VARGHESE KIZHAKKAMBALAM


RESPONDENT/COMPLAINANT:

    1     SUB INSPECTOR OF POLICE
          PERUMBAVOOR POLICE STATION.
    2     STATE OF KERALA REPRESENTED BY
          PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM.


          SRI.M.S.BREEZ (SR.PUBLIC PROSECUTOR)


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.A.No.2365/2006                               2




                                  JUDGMENT

Dated this the 7th day of July 2021

The challenge in this appeal is to the judgment dated

18.11.2006 passed by the learned II Additional Sessions Judge,

Ernakulam in Sessions Case No.147 of 2006. By the impugned

judgment, the appellant/accused was convicted of the offence under

Section 323 IPC and sentenced to undergo simple imprisonment for

a period of three months and to pay fine of Rs.1,000/-.

2. The genesis of this case dates back to 28 th of August,

2005. The appellant/accused had an altercation with Yamuna

(PW2), his neighbour, who was taking her goat for grazing in the

property of one Murali. He caught hold on her tuft. By the time, the

victim (PW1), who was on the scene, intervened and attempted to

prevent the accused from causing harm to PW2. Enraged by this

interference by PW1, the appellant caught hold of his penis and

scrotum and twisted it causing serious injuries to him. PW1 was

taken to Sanjoe Hospital, Perumbavoor by PW3 and another.

3. PW1 launched FIS before the Perumbavoor police in

which Crime No.525 of 2005 was registered. The prosecution

alleged that the accused committed the above acts with the

knowledge that he was likely by such act to cause death of the victim

and thereby committed the offence punishable under Section 308

IPC.

4. After completion of investigation, charge sheet was laid

before the Judicial Magistrate of First Class, Perumbavoor alleging

offence punishable under Section 308 IPC. The case was committed

to the Court of Sessions, Ernakulam from where it was made over to

the trial court.

5. The accused appeared before the trial court. Charge was

framed against him for the offence punishable under Section 308

IPC. He pleaded not guilty and therefore, he came to be tried by the

trial court for the aforesaid offence.

6. The evidence for the prosecution consists of the oral

evidence of PWs 1 to 6 and Exhibits P1 to P4.

7. After closure of the evidence on behalf of the

prosecution, the accused was questioned under Section 313 Cr.P.C.

He pleaded innocence. The matter was heard under Section 232

Cr.P.C. The trial court found that there was evidence against the

accused and hence he was called upon to adduce evidence, if any, he

may have in support thereof. After hearing the arguments addressed

from both sides, the accused was found guilty of the offence

punishable under Section 308 IPC and he was sentenced to undergo

simple imprisonment for a term of three months and to pay a fine of

Rs.1,000/-.

8. Heard Sri.V.Rajendran, the learned counsel appearing

for the appellant/accused and Sri.M.S.Breez, the learned Senior

Public Prosecutor appearing for the respondents.

9. The following points arise for consideration:

(i) Whether the prosecution succeeded in establishing the

ingredients of the offence punishable under Section 323

IPC against the accused.

(ii) Whether the sentence imposed against the accused

requires modification.

10. PW1, the victim has given evidence that on 28.8.2005

around 2 P.M., while he was returning home, he found the accused

holding the tuft of PW2 and having quarrel with her. PW1

intervened in the matter as he wanted to prevent a cruelty being

committed against a lady. The accused did not appreciate the same.

He questioned the authority of PW1 to interfere in the matter.

Enraged by that the accused caught hold of his penis and scrotum

and squeezed it. The accused also caught hold of his neck and tried

to strangle him. On hearing the cry of PW1, the wife of the accused

rushed to the scene and got the grip of the accused released. PW1

got up and attempted to escape from the scene. Not being satisfied

with what he had done, the accused got a chopper from somewhere

and chased PW1. PW1 was bleeding profusely from the wound on

his scrotum and collapsed. He was taken to a private hospital at

Perumbavoor by PW3 and another.

11. According to PW1, his scrotum was torn and his testicles

came out and the wound was sutured by applying ten stitches. PW2,

a neighbour of the accused, gave evidence in support of the

prosecution. PW2 deposed that at the relevant time, she had

brought her goat for grazing in the property of Murali and the

accused questioned her right to enter the property and he assaulted

her by catching hold of her tuft and also strangled her by her neck.

According to PW2, on hearing her cry, PW1 rushed to the scene and

intervened in the incident. PW1 caught hold of the accused from

behind. By the time, the accused turned against PW1 and caught

hold of him under his dhothy and with his other hand, he caught

hold of his neck.

12. PW3 testified to the effect that on the relevant day, he

saw PW1 coming from near the house of the accused crying aloud

with bleeding injury. PW3 and another took him to Sanjoe Hospital

at Perumbavoor and got him admitted there.

13. PW4, the Chief Medical Officer at Sanjoe Hospital, gave

evidence that the victim was examined at the hospital by the

Resident Medical Officer and Exhibit P3 medical certificate was

issued. PW4 testified that PW1 had sustained abrasions over the

neck and chest and a fracture of the premolar tooth and a lacerated

wound measuring 4x2x1 on the scrotum. PW4 stated that the injury

could be caused by someone pulling the scrotum with force.

14. The case of the accused is that the incident occurred in

the landed property belonging to him into which PW2 had

trespassed disregarding his warning and when he questioned her,

PW1 interfered. The credibility of the oral evidence of PWs 1 to 3

has not been successfully challenged by the defence. The oral

evidence of PW1, the victim, and PWs 2 and 3 is corroborated by the

oral evidence of PW4, Exhibit P1 FIS and Exhibit P3 accident

prosecution could successfully establish the incident proper.

15. The learned counsel for the appellant/accused contended

that even when it is proved that the prosecution could establish the

incident proper, the accused was exercising his private defence as

the victim was the aggressor. The contention of the accused is on the

foundation that the victim entered into the property belonging to the

accused for the purpose of interfering with the altercation that was

taking place between the accused and PW2. Admittedly there was

an altercation between PW1 and the accused which resulted from the

incident when the victim made an attempt to save PW2 while she

was assaulted by the accused. PW1 had only interfered in the

altercation, so as to prevent the accused from causing any harm to

PW2, the lady who was acquainted with him. The oral evidence of

PW2 is to the effect that PW1 had caught hold of the accused in

order to release his grip from her tuft and the accused immediately

turned against PW1 and caught hold of him.

16. There is absolutely no injuries on the body of the

accused. There is nothing to show that a tussle occurred between

the accused and PW1 so that the accused would have exercised the

right of private defence.

17. The law clearly spells out that right of private defence is

available only when there is reasonable apprehension of receiving

the injury. The law makes it clear that it is necessary that the extent

of right of private defence is that the force used must bear a

reasonable proportion of the injury to be averted, that is the injury

inflicted on the assailant must not be greater than is necessary for

the protection of the person assaulted. A person in fear of his life is

not expected to modulate his defence step by step, but at the same

time it should not be totally disproportionate.

18. In State of Madhya Pradesh v. Ramesh [(2005) 9

SCC 705], while dealing with plea of private defence, the Apex Court

held thus :

"every person has a right to defend his own body and the body of another person against any offence, affecting the human body. The right of self defence commences as soon as reasonable apprehension arises and it is co-terminus with the duration of such apprehension. Again, it is defensive and not retributive right and can be exercised only in those cases where there is no time to have recourse to the protection of the public authorities."

19. In Darshan Singh v. State of Punjab and

another [(2010) 2 SCC 333], the Apex Court in Paragraph 56 held

thus :

"56. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered."

20. The Apex Court has also summarised the principles on

the right of private defence in paragraph 58, which include the

following :

"58 (i) ................................

(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.

............................................

(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."

21. In the instant case, the accused failed to establish that

he was suddenly confronted with the necessity of averting an

impending danger. He also failed to establish that he was 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. He also failed to justify infliction of injuries on the body

of the victim. The accused has not received any injuries or had any

imminent threat of his safety. The circumstances brought out in this

case lead this Court to conclude that he was not exercising his right

of private defence while inflicting injuries on the body of the

accused.

22. The court below has rightly held that the accused

voluntarily caused hurt to the victim and convicted the accused

under Section 323 IPC. The conviction recorded by the court below

requires no interference and the same is liable to be confirmed.

23. The learned counsel for the appellant/accused submitted

that the sentence imposed is exorbitant. The trial court sentenced

the accused to undergo simple imprisonment for a period of three

months and a fine of Rs.1,000/-.

24. The incident occurred on 28.8.2005. The proceedings in

this case continued for more than 15 years by now causing immense

trauma, mental pain and anguish to the appellant/accused.

25. In Gurmugh Singh v. State of Haryana [(2009) 15

SCC 635], the Apex Court narrated the factors to be considered

before awarding appropriate sentence to the accused in paragraph

24, which read thus :

24. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:

a) Motive or previous enmity;

b) Whether the incident had taken place on the spur of the moment;

c) The intention/knowledge of the accused while inflicting the blow or injury;

d) Whether the death ensued instantaneously or the victim died after several days;

e) The gravity, dimension and nature of injury;

f) The age and general health condition of the accused;

g) Whether the injury was caused without pre-meditation in a sudden fight;

h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

i) The criminal background and adverse history of the accused;

j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

k) Number of other criminal cases pending against the accused;

l) Incident occurred within the family members or close relations;

m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused."

26. In Singh K.P. v. State of N.C.T. of Delhi (2015 KHC

4640), the Apex Court, after taking into account the prolonged

proceedings in the trial and appeal for nearly 17 years, reduced the

sentence of two years' imprisonment imposed on the appellant

therein to 7½ months being the period of imprisonment already

undergone by him. The offence alleged in that case was punishable

under Section 8 of the PC Act, 1988.

27. In Vinay and others v. State of Karnataka and

another (2015 KHC 4296), the Apex Court reduced the sentence of

imprisonment for a period of three months under Section 326 IPC

read with Section 34 and 427 IPC to the period already undergone

by the appellant therein.