Kerala High Court
Pradeep vs State Of Kerala on 23 October, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2024:KER:78549
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA,
1946
CRL.A NO. 931 OF 2017
AGAINST THE JUDGMENT DATED 30.08.2017 IN SC NO.811 OF
2012 ON THE FILES OF THE COURT OF THE ADDITIONAL SESSIONS
JUDGE-IV, KOLLAM
APPELLANT/3RD ACCUSED IN SESSIONS CASE:
SURESH
AGED 30 YEARS, S/O. SOMAN, PANAYIL VEEDU,
AMBATHEKKAR, KULATHUPUZHA MURI, KOLLAM DISTRICT.
BY ADVS.
SRI.C.PRATHAPACHANDRAN PILLAI
SRI.N.ANAS
SRI.R.SURAJ KUMAR
SRI.V.K.UNNIKRISHNAN KOLLAM
SRI.VISHNUPRASAD NAIR
SRI.K.R.ARUN KRISHNAN
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
Crl.Appeal Nos.931 of 2017 and con. cases
2024:KER:78549
-: 2 :-
SRI.E.C.BINEESH PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.10.2024 ALONG WITH CRL.A.964/2017 AND CRL.A.302/2018,
THE COURT ON 23.10.2024 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.931 of 2017 and con. cases
2024:KER:78549
-: 3 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA,
1946
CRL.A NO. 964 OF 2017
AGAINST THE JUDGMENT DATED 30.08.2017 IN SC NO.811 OF
2012 ON THE FILES OF THE COURT OF THE ADDITIONAL SESSIONS
JUDGE-IV, KOLLAM
APPELLANT/2ND ACCUSED:
PRADEEP
AGED 25, S/O.SOMAN, PANAYIL VEEDU,
AMBALATHEKKAR, KULATHUPUZHA MURI, KOLLAM.
BY ADV SRI.ARUN BABU
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE SUB INSPECTOR OF POLICE,
KULATHUPUZHA POLICE STATION, THROUGH THE PUBLIC
PROSECUTOR - 691 001, HIGH COURT OF KERALA,
ERNAKULAM-682031.
SRI.E.C.BINEESH PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.10.2024 ALONG WITH CRL.A.931/2017 AND CRL.A.302/2018,
THE COURT ON 23.10.2024 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.931 of 2017 and con. cases
2024:KER:78549
-: 4 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA,
1946
CRL.A NO. 302 OF 2018
AGAINST THE JUDGMENT DATED 30.08.2017 IN SC NO.811 OF
2012 ON THE FILES OF THE COURT OF THE ADDITIONAL SESSIONS
JUDGE-IV, KOLLAM
APPELLANT/ACCUSED NO.1:
RATHEESH
AGED 27 YEARS, S/O.SOMAN, RATHEESH BHAVAN,
AMBATHEKKAR, KULATHUPUZHA MURI.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRA KRISHNAN
SRI.D.FEROZE
SRI.V.VINAY
RESPONDENT/STATE:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031 (CRIME NO.415/2010 OF
KULATHUPUZHA POLICE STATION, KOLLAM DISTRICT).
SRI.E.C.BINEESH PP
THIS CRIMINAL APPEAL HAVING BEENN FINALLY HEARD ON
10.10.2024 ALONG WITH CRL.A.931/2017 AND CRL.A.964/2017,
THE COURT ON 23.10.2024 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.931 of 2017 and con. cases
2024:KER:78549
-: 5 :-
P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ.
-----------------------------------------------
Crl.Appeal Nos.931 and 964 of 2017 and 302 of 2018
-----------------------------------------------
Dated this the 23rd day of October, 2024
JUDGMENT
P.B.Suresh Kumar, J.
These appeals arise from S.C.No.811 of 2012 on the
files of the Court of the Additional Sessions Judge-IV, Kollam.
There were six accused in the case. Among them, accused 1
and 3 were found guilty of the offence punishable under
Section 302 read with Section 34 of the Indian Penal Code (IPC)
and the second accused was found guilty of the offence
punishable under Section 324 IPC, and accordingly, they were
convicted and sentenced. The remaining accused were
acquitted of the charges. The appeals are preferred by
accused 1 to 3 challenging their conviction and sentence in the
case.
2. Vinod, Sajeer and Ayyappan were activists of the
political party, the Communist Party of India (CPI). A procession
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was conducted by the said political party in the locality of the
place where the crime, which is the subject matter of the case,
took place on 16.05.2010. The first accused in the case is a
barber by profession and he runs a shop on the western side of
the road leading to the place called Ampathekkar. Although the
shop of the first accused is not one abutting the road, but only
abutting a lane which starts from the road, the shop building is
one constructed close to the road. The procession was moving
from south to north towards Ampathekkar junction. Vinod,
Sajeer and Ayyappan were the last three participants in the
procession. The occurrence which is the subject matter of the
case took place at about 4 p.m. in front of the shop of the first
accused, immediately after the procession crossed the point
from where the lane starts and Vinod, Sajeer and Ayyappan
sustained injuries in the occurrence. Sajeer and Ayyappan were
taken first to Nilagiri Hospital, Kulathupuzha and from there to
Mission Hospital, Anchal. While the doctor at the Mission
Hospital, Anchal was examining Sajeer and Ayyappan, Vinod
was brought dead there. Sajeer and Ayyappan were later taken
to the Medical College Hospital, Thiruvananthapuram. A case
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was registered by Kulathupuzha Police in connection with the
crime based on information furnished by Sajeer while
undergoing treatment at the Medical College Hospital. The
investigation in the case revealed that it was the accused who
caused injuries to Vinod, Sajeer and Ayyappan. Final report was
accordingly filed against them alleging commission of offences
punishable under Sections 147, 148, 341, 302, 307, 323 read
with Section 149 IPC.
3. There was a quarrel between the accused and
Biju, the brother of the deceased on an earlier occasion. The
accusation against the accused in the final report is that the
deceased warned the accused in connection with the said
incident and on account of that reason, at about 4 p.m. on
16.05.2010, while the procession was going on, the accused
formed themselves into an unlawful assembly, teased and
hurled offensive words against Vinod and others. It is alleged
that aggrieved by the said conduct of the accused, the
deceased and others including Sajeer and Ayyappan proceeded
to the shop of the first accused and questioned the accused in
front of the shop about their conduct and in the course of the
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verbal altercation that took place thereupon, the deceased
beat the first accused with his hand. It is also alleged that the
first accused then, after taking out a pair of scissors from the
shop, stabbed Sajeer on his neck and when Sajeer got away
from the attack, the stab fell on his right hand and when the
deceased and Ayyappan attempted to save Sajeer from the
attack of the first accused, the first accused inflicted a stab
injury on the chin of the deceased. It is also alleged that the
third accused thereupon stabbed on the left chest and on the
left hand of the deceased with another pair of scissors. It is
also alleged, among others, that in the meanwhile the second
accused hit Ayyappan with a stone on his head.
4. On the accused being committed to trial, the
Court of Session framed charges against them to which they
pleaded not guilty. The prosecution thereupon examined 17
witnesses as PWs 1 to 17 and proved through them 31
documents as Exts.P1 to P31. MOs 1 to 18 are the material
objects in the case. On the closure of the evidence of the
prosecution, when the accused were questioned under Section
313 of the Code of Criminal Procedure (the Code), they denied
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the incriminating circumstances against them. As the case was
not one found fit for acquittal under Section 232 of the Code,
the accused were called upon to enter on their defence. A
witness was examined on the side of the accused thereupon as
DW1. Thereupon, on a consideration of the evidence on record,
the Court of Session found accused 1 and 3 guilty of the
offence punishable under Section 302 read with Section 34 IPC
and the second accused guilty of the offence punishable under
Section 324 IPC. They were accordingly convicted and
sentenced.
5. It is seen that in terms of the order passed on
25.10.2017 in Crl.M.A. No. 5516 of 2017 in Crl.Appeal No.964
of 2017, this court suspended the execution of the sentence
passed against the second accused on executing a bond.
6. Heard Adv.Sri.S.Rajeev for the first accused,
Adv.Sri.Arun Babu for the second accused and Adv.Sri.Arun
Krishnan for the third accused. Learned Public Prosecutor,
Sri.E.C.Bineesh addressed arguments on behalf of the State.
7. Even though it was alleged by the prosecution
that the accused committed the crime after forming
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themselves into an unlawful assembly with the common object
of committing the murder of Vinod, the Court of Session held
that the prosecution failed to establish that case. It was
thereupon that the Court of Session convicted accused 1 and 3
for the offence punishable under Section 302 IPC on the basis
that they shared the common intention to commit the murder
of the deceased.
8. The learned counsel for the appellants did not
dispute the finding rendered by the Court of Session that the
case on hand is a case of homicide. Instead, the attempt of the
learned counsel was to establish that the complicity of accused
1 to 3 in the crime has not been proved by the prosecution
beyond reasonable doubt. The main argument put forward by
the learned counsel for the first accused, however, was that
even if it is found that the prosecution has succeeded in
establishing the complicity of the first accused in the crime, he
cannot be convicted for the offence punishable under Section
302 IPC, for according to the learned counsel, even though it is
permissible for the court to convict the accused invoking
Section 34 IPC in a case of this nature, there is absolutely no
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material in the case to convict the first accused invoking
Section 34 IPC. The alternative argument advanced by the
learned counsel for the third accused, however, was that even
if it is found that the prosecution has established the
complicity of the third accused in the crime, he is not liable to
be convicted in the case as the facts demonstrate that the act,
if any, committed by the third accused was one done in the
exercise of his right of private defence. The alternative
argument advanced by the learned counsel for the second
accused, however, was that the conviction of the second
accused under Section 324 IPC is without any basis for, there is
nothing on record to corroborate the version of the witnesses
that the second accused hit Ayyappan with a stone on his
head. That apart, according to the learned counsel for the
second accused, there was no corresponding injury also on the
body of Ayyappan. It was also argued that the stone allegedly
used by the second accused was also not recovered.
9. The learned Public Prosecutor supported the
impugned judgment pointing out that the proved facts would
demonstrate the complicity of the convicted accused in the
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crime and also that accused 1 and 3 shared the common
intention to commit the murder of the deceased. In the context
of the argument advanced by the learned counsel for the third
accused, it was also argued by the learned Public Prosecutor
that inasmuch as the accused were the aggressors, the third
accused cannot claim the benefit of the right of private
defence. The learned Public Prosecutor also relied on the
recent decision of this Court in Thomas @ Thomachan v. State
of Kerala, 2024 KHC 954, in support of the said stand taken by
him.
10. We have perused the evidence on record
closely and considered the arguments put forward by the
learned counsel for the accused.
11. The points that fall for consideration are the
following:
(1) whether the prosecution has succeeded in
establishing the complicity of accused 1 to 3 in the
crime;
(2) if point (1) is answered in the affirmative, whether
the Court of Session was justified in applying Section 34
IPC to hold that the first accused is also guilty of the
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offence punishable under Section 302 IPC;
(3) if point (1) is answered in the affirmative, is this a
case where the third accused was justified in inflicting
the fatal injuries on the deceased in exercise of his right
of private defence;
(4) whether the finding of the Court of Session that the
second accused is guilty of the offence punishable under
Section 324 IPC, is sustainable in law; and
(5) the reliefs, if any, the accused are entitled to.
12. The points:- In order to consider the points, it
is necessary to delve deep into the evidence in the case. The
prosecution examined three witnesses to prove the
occurrence. Among them, PW1 is none other than Ayyappan
who was in the company of the deceased and Sajeer while
participating in the procession. The version of PW1 as regards
the occurrence is that when they reached near the shop of the
first accused, the accused hurled offensive words against them
and also teased them and while they were questioning the
accused for the same, the deceased beat the first accused. It
was also his version that the first accused then took out a pair
of scissors from his shop and attempted to stab on the neck of
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Sajeer which, when he warded off, fell on his right hand. It was
also deposed by PW1 that he along with the deceased then
pushed away the first accused and the first accused then
attempted to stab on the neck of the deceased and since the
deceased got away, the stab fell on his chin. It was also
deposed by PW1 that the third accused then stabbed on the
left chest of the deceased with the pair of scissors carried by
him. It was also deposed by PW1 that about a month prior to
the occurrence, the accused assaulted Biju, the brother of the
deceased and when the deceased came to know about the
said incident, PW1 along with the deceased and Sajeer warned
them and it is on account of that reason that the accused
attacked them. In cross-examination, PW1 admitted that the
barber shop of the first accused is situated about 10 feet inside
the road and that he did not inform the police the particulars of
the offensive words used by the accused. Similarly, PW1
admitted that he along with the deceased and Sajeer went
near the shop of the first accused when the accused howled
and used offensive words. According to PW1, even when they
approached the accused they used offensive words and it was
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then that the deceased assaulted the first accused. The
relevant portion of the cross-examination of PW1 reads thus:
"ച ത വ ള ച കവ യപ ൾ ഞങൾ 3 പ ര അപങ ട ചചനത ണ. ചചനപ ൾ വ ണ
ച തവ ള ച. അപ ൾ വ പ ദ A1-ച അട ച."
It was also admitted by PW1 that when he along with the
deceased and Sajeer went near the shop of the first accused,
the accused were not carrying any weapon and the weapon
used by the third accused was one taken by him from the
scene of occurrence. The relevant evidence read thus:
"A3-യചട കയ ൽ ആദ% ഞ ൻ കത ക കണ ല. A1- അട ക ട യ പ*ഷ ത ര ഞ
എടതത ണ. അവ ചട ഒര ത ടയണ യ രന. A3 കടയചട അകതകയറ എടതതല.
ത ടയ ൽ ന ണ A3 കത
" ക എടതത."
13. PW2 is also an activist of the political party CPI
who participated in the procession. It was deposed by PW2 that
after the procession passed the point of the shop of the first
accused, he heard a commotion from behind and when he
rushed to that place, he saw the occurrence. The version of
PW2 as regards the occurrence was in tune with the evidence
given by PW1. PW3 is not a person who participated in the
procession. PW3 is also not an activist of CPI. According to
PW3, he was standing near the shop of the first accused. The
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version of PW3 as regards the occurrence was that the
accused, who were standing near the shop of the first accused
when the procession passed that point, talked to each other in
a way that teased the participants of the procession. According
to PW3, the deceased along with PW1 and Sajeer then went
towards the barber shop after detaching themselves from the
procession and questioned the accused about their conduct
and beat the first accused. According to PW3, it was then that
the first accused along with the third accused went inside the
shop and came out with a pair of scissors. The relevant
evidence reads thus:
".........എന വർ Barber shop-ന മന ൽ ന കള യ കന ര ത യ ൽ സ സ ര കനത
കണ. ജ ഥകടനപ യ ഏറവ ന ല യ വ പ ദ അയ ന സജ റ വര കയ യ രന.
വ പ ദ Barber shop-ൽ അടത ചചന എന ട കള യ കനത എന പച ദ ച ചക ണ
രത ഷ ച അട ച. ആ സമയത രത ഷ സപമഷ (ബ ബകടചH പജഷൻ കടകള ൽ കയറ
ത ര ചക കത കയമ യ വന."
As regards the event that took place thereafter the evidence
tendered by PW3 was consistent with the evidence tendered
by PWs 1 and 2.
14. Among the remaining witnesses examined,
only the evidence tendered by PW12, PW16 and PW17 needs
to be referred to for the purpose of resolving the points
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formulated for decision. PW12 was the doctor who conducted
the postmortem examination on the body of the deceased and
issued Ext.P5 postmortem certificate. The ante-mortem injuries
1, 2 and 4 found by PW12 on the body of the deceased at the
time of post-mortem examination as deposed by her are as
follows:
1. Incised penetrating wound 3.5x1.5cm obliquely placed on
the left side of front of chest, its upper inner sharply cut end
was 4.5cm outer to midline and 14cm below the collar bone.
The other end was rounded. The chest cavity was seen
penetrated through the fourth intercostal space and
terminated in the chamber of right ventricle (2.5x0.2x0.5cm)
after cutting through the pericardium. The wound was
directed backwards and to the right for a total minimum depth
of 3.2cm.
2.Incised penetrating wound 2x0.7cm oblique on the left side
of front of chest, its upper inner end was 3cm outer to midline
and 10cm below the collar bone. Both ends of the wound were
sharply cut. The chest cavity was seen penetrated through
the third intercostal space and terminated in the chamber of
left ventricle(2x0.5x1.5cm) after cutting through the
pericardium. The wound was directed backwards and to the
right for a total minimum depth of 4.2cm. The injury no.(1)
and (2) were in the same oblique line and were 1.3cm apart.
The left chest cavity contained 730 ml of fluid blood. The lung
was partially collapsed. Pericardial cavity contained 30ml of
fluid blood and blood clots.
xxx xxx xxx
4. Incised wound 3.1x3x0.2cm oblique on the right side of
chin its upper inner end 3cm outer to midline.
The opinion of PW12 as to the cause of death was that the
death was due to the penetrating injury sustained to the chest.
It was added by PW12 in her deposition that injuries 1 and 2
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are independently, or in combination, sufficient to cause death
in the ordinary course. After examining MO2 pair of scissors,
PW12 deposed that injuries 1 and 2 can be caused by the
same. Similarly, after examining MO1, it was deposed by PW12
that injury 4 could be caused by a weapon like the same. In
cross-examination, it was clarified by PW12 that injuries 1 and
2 can be caused in a single infliction if the blade portion of the
weapon is open.
15. PW16 was the police officer who conducted
the investigation in the case. PW16 deposed that during
interrogation in the custody of the police, the first accused
informed PW16 that he has hidden a pair of scissors in the teak
plantation at a place called Kottamukku and when he was
taken to that place as guided by him, he took out from that
place MO1 pair of scissors and the same was seized by PW16
as per Ext.P6 mahazar. Similarly, it was deposed by PW16 that
during the interrogation, the third accused informed him that
he has hidden a pair of scissors in the teak plantation at a
place near Villumala Kani Settlements and when he was taken
to that place as guided by him, he took out MO2 pair of
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scissors from that place and the same was seized by PW16 as
per Ext.P4 mahazar.
16. PW17 was the Medical Superintendent
attached to St.Joseph Mission Hospital, Anchal. PW17 deposed
that during 2010, one Dr.Rajasekharan was working as
Casualty Medical Officer in the said hospital, and that he is
acquainted with the signature of Dr.Rajasekharan. It was
deposed by PW17 that on 16.05.2010, Dr.Rajasekharan
examined PW1 and issued Ext.P31 wound certificate. According
to PW17, the injury noted on PW1 by Dr. Rajasekharan at the
time of examination was a contusion with abrasion over left
temperoparietal area of scalp 8x3 cm and the cause of the
injury was recorded by him as "ജ ഥയൽ ചKടകചവ പറക ൽ ന വനച ലർ
ആയധങൾ ഉ പയ ഗച ആകമ ചതൽ വച". PW17 opined that the said injury
was not a grave one.
17. The above discussed is the evidence in the
case. The first and foremost question to be examined is
whether the conclusion arrived at by the Court of Session
based on the said evidence that the prosecution has
succeeded in establishing the complicity of accused 1 to 3 in
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the crime beyond reasonable doubt, is sustainable in law.
Although there are few minor and trivial inconsistencies and
contradictions in the evidence as regards the complicity of
accused 1 to 3 in the crime as also the overt acts committed
by them, according to us, the evidence is consistent, and we
do not find any reason to doubt the veracity of the same. We
are, therefore, in complete agreement with the finding
rendered by the Court of Session that the prosecution has
succeeded in establishing the complicity of accused 1 to 3 in
the crime, beyond reasonable doubt.
18. The next question is whether the Court of
Session was justified in holding that accused 1 and 3
committed the crime in furtherance of the common intention
shared by them. The Court of Session did not accept the case
of the prosecution that the accused formed themselves into an
unlawful assembly and committed the crime in prosecution of
the common object of that assembly. It was thereafter that the
Court of Session came to the conclusion that accused 1 and 3
committed the crime in furtherance of the common intention
shared by them. As submitted by the learned counsel for the
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first accused, it is permissible for the court in appropriate
cases to convict the accused invoking Section 34 IPC, if it is
found that the prosecution failed to establish its case that the
accused committed the crime in prosecution of the common
object of an unlawful assembly. But, the pointed question is
whether the facts of the present case would justify such a
conclusion. As noted, the prosecution has no case that the
subject crime is a premeditated one. The specific case of the
prosecution itself is that accused 1 to 3 attacked the deceased
and others when the deceased and others questioned them in
front of the shop of the first accused which is a little away from
the road, after detaching themselves from the procession, for
having teased and hurled offensive words against them. It is
also the specific case of the prosecution that in the course of
the verbal altercation that took place thereafter, the deceased
beat the first accused with his hands and it was thereafter, the
sequence of events which led to the death of the deceased
occurred. There is no satisfactory evidence in the case to hold
that the accused used offensive words against the deceased
and others especially since it is admitted that the injured
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persons had not disclosed to the police, the particulars of the
offensive words used by the accused. No doubt, there is
satisfactory evidence to show that the accused teased the
participants of the procession and howled at them while the
procession was moving. Be that as it may, the proved facts
reveal that the move on the part of the deceased and others to
go near the place where the accused were standing, was an
unexpected one. Likewise, the conduct on the part of the
deceased beating the first accused was also an unexpected
one. The evidence indicates that it was at that point of time
that the accused started attacking the deceased and others.
We do not think that in a case of this nature, it could be held
conclusively that the attack of accused 1 and 3 on the
deceased was in furtherance of the common intention shared
by them to commit the murder of the deceased, especially
when the overt acts attributed to each of them were
committed immediately following the unexpected moves on
the part of the deceased. At the most, what could be inferred is
that accused 1 and 3 wanted to prevent the deceased from
attacking the first accused further. That does not mean that
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accused 1 and 3 shared the common intention to commit
murder of the deceased. It is apposite in this context to refer to
a paragraph from the decision of the Apex Court in Virendra
Singh v. State of M.P., (2010) 8 SCC 407. The relevant
paragraph reads thus:
"Ordinarily, a person is responsible for his own act. A person
can also be vicariously responsible for the acts of others if he
had the common intention to commit the offence. The words
"common intention" imply a prearranged plan and acting in
concert pursuant to the plan. It must be proved that the
criminal act was done in concert pursuant to the prearranged
plan. Common intention comes into force prior to the
commission of the act in point of time, which need not be a
long gap. Under this section a preconcert in the sense of a
distinct previous plan is not necessary to be proved. The
common intention to bring about a particular result may well
develop on the spot as between a number of persons, with
reference to the facts of the case and circumstances of the
situation. Though common intention may develop on the spot,
it must, however, be anterior in point of time to the
commission of the crime showing a prearranged plan and prior
concert. The common intention may develop in course of the
fight but there must be clear and unimpeachable evidence to
justify that inference. This has been clearly laid down by this
Court in Amrik Singh v. State of Punjab [(1972) 4 SCC (N) 42 :
1972 Cri LJ 465] .
underline supplied
Needless to say, the Court of Session acted illegally in invoking
Section 34 IPC to convict the first accused for the act
committed by the third accused. If that be so, accused 1 and 3
can only be convicted for the individual overt acts committed
by them. As far as the first accused is concerned, the overt act
proved against him is only that he inflicted an incised wound
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having the dimension of 3.1 x 3 x 0.2 cm on the right side of
the chin of the deceased with MO1 pair of scissors. The first
accused, in the circumstances, can be convicted only for the
offence punishable under Section 324 IPC.
19. As noticed, the overt act attributed to the
second accused is that he hit on the head of PW1 with a stone.
As found by us, the complicity of the second accused in the
crime cannot be doubted. The contention raised by the learned
counsel for the second accused that the stone with which the
second accused attacked PW1 was not recovered is not a
ground to hold that the finding rendered by the Court of
Session in this regard is unsustainable, when the evidence
tendered by PW1 is reliable and convincing. Similarly, the
contention raised by the learned counsel for the second
accused that no corresponding injury was sustained by PW1, is
incorrect. As noted, PW17 has categorically stated in his
evidence that on examination of PW1 by Dr.Rajasekharan
attached to St.Joseph Mission Hospital, Anchal, he found a
contusion with an abrasion over the left temperoparietal of the
scalp of PW1, measuring 8x3 cm. In the light of the evidence
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tendered by PW1 and PW17 as also Ext.P31 wound certificate,
we do not find any illegality in the finding rendered by the
Court of Session that the second accused is guilty of the
offence punishable under Section 324 IPC.
20. The next question revolves around what
offence was committed by the third accused. The third accused
has no case that the act committed by him would not amount
to murder defined under Section 300 IPC. The contention
advanced by the learned counsel for the third accused is only
that the act, if any, committed by the third accused was one
done in the exercise of his right of private defence and he is,
therefore, not liable to be convicted. No doubt, every person
has a right to defend not only his own body but also the body
of any other person, against any offence affecting human body.
But, the said right is subject to the restrictions contained in
Section 99 IPC. Section 99 IPC clarifies that the right of private
defence, in no case, extends to the inflicting of more harm
than it is necessary to inflict for the purpose of defence.
Section 100 IPC provides that the right of private defence of
the body extends, under restrictions mentioned in Section 99,
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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 any of the descriptions enumerated therein. Seven
categories of cases are mentioned in Section 100, of which
only categories "First" and "Secondly" are relevant in the
context of the present case. Category First is cases involving
assault which may reasonably cause the apprehension that
death will otherwise be the consequence of such assault and
category Secondly is cases involving assault which may
reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault. "Assault" as
defined in Section 351 including illustration (a) to the Section
reads thus:
"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.
Illustrations
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(a) A shakes his fist at Z, intending or knowing it to be likely
that he may thereby cause Z to believe that A is about to
strike Z. A has committed an assault.
(b) xxxx
(c) x x x x."
In the case on hand, having regard to the evidence let in by
the prosecution, it can certainly be held that the deceased had
not only assaulted the first accused but also voluntarily caused
hurt to him. But, the question is whether the assault
committed by the deceased was sufficient to cause a
reasonable apprehension among the accused that death or
grievous hurt will otherwise be the consequence of such
assault.
21. It is difficult to judge the nature of
apprehension which a person, in a given case, reasonably
entertains in such circumstances requiring him to act on the
spur of the moment when he finds himself or another
assaulted, by a number of persons and such situations have to
be judged in the light of what happens on the spur of the
moment at the spot and keep in view of the normal course of
human conduct as to how a person would react under such
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circumstances in a sudden manner within an instinct of self-
preservation. It is trite that such situations have to be judged
from the subjective point of view of the person concerned who
is confronted with such a situation at the spot and cannot be
subjected to any microscopic and pedantic scrutiny [See
Wassan Singh v. State of Punjab, (1996) 1 SCC 458]. It is also
trite that the burden of establishing the plea of private defence
is on the accused and the burden stands discharged by
showing preponderance of probabilities in favour of that plea
on the basis of materials on record. In determining that
question of fact, the court must consider all the surrounding
circumstances and if the circumstances show that the right of
private defence was legitimately exercised, it is open to the
court to consider such a plea. It was held by the Apex Court in
Buta Singh v. State of Punjab, (1991) 2 SCC 612 that a person
who is apprehending death or bodily injury cannot weigh in
golden scales in the spur of moment and in the heat of
circumstances, the number of injuries required to disarm the
assailants. It was also held by the Apex Court in the said case
that in moments of excitement and disturbed mental
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equilibrium, it is often difficult to expect the parties to preserve
composure and use exactly only so much force in retaliation
commensurate with the danger apprehended by him. Where
assault is imminent by use of force, it would be lawful to repel
the force in self-defence and the right of private defence
commences, as soon as the threat becomes so imminent. Such
situations have to be pragmatically viewed and not with high
powered spectacles or microscopes to detect slight or marginal
overstepping [See James Martin v. State of Kerala, (2004) 2 SCC
203]. The facts of the case need to be appreciated keeping in
mind the said principles.
22. There is nothing on record to indicate that the
deceased and injured carried any weapon with them when they
detached themselves from the procession and proceeded to
the scene of occurrence in front of the shop of the first
accused. Even though it has come out in evidence that
participants of the procession carried flags of their political
party tied to poles, it is not clear from the materials as to
whether the deceased and his companions namely, PW1 and
Sajeer carried flags tied to poles when they proceeded to the
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scene of occurrence after detaching themselves from the
procession. It has also come out in evidence that the deceased
and his companions were part of a group of about 75
individuals who participated in the procession with flags of
their political party tied to poles. In other words, it could be
held without an iota of doubt that it is on the strength of
persons who participated in the procession that the deceased
and his companions questioned the accused on their conduct
in teasing and howling at them. Similarly, it can also be held
that it is on the strength of persons who participated in the
procession that the deceased went to the extent of beating the
first accused for, even assuming that the accused and others
teased the deceased, PW1 and Sajeer and howled at them, one
is not expected, having regard to the common course of
natural events and human conduct to beat the person who
teased them. We take this view also for the reason that even
though it is alleged by the prosecution that the accused hurled
offensive words at the deceased and others, what was deposed
by PW3 was only that the accused talked in such a way so as
to tease the participants of the procession when the procession
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was going on. Yet another reason for us to hold so is that PW1,
who deposed that the accused used offensive words at the
deceased and others, conceded in cross-examination, that he
had not disclosed the offensive words allegedly used by the
accused while giving his statement to the police. There can be
no doubt to the fact that the conduct of the deceased in
beating the first accused provoked the first accused and it was
under that circumstance that the first accused went inside his
shop and took out a pair of scissors from there to attack the
deceased and others. However, it is not clear from the
materials as to whether the first accused was justified in his
conduct to the above extent to protect his body from the
attack of the deceased and others at that stage. Be that as it
may, as noted, it was at that stage that the third accused took
out MO2 pair of scissors from the scene of occurrence. True,
the evidence tendered by the prosecution witnesses is not
consistent as regards the place from where the third accused
secured the pair of scissors. While it was deposed by PW1 that
even the third accused took the pair of scissors from the scene
of occurrence, the stand taken by PW3 in his evidence was that
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he took out the said weapon from the shop of the first accused.
Be that as it may, the benefit of that doubt should certainly go
in favour of the accused. Inasmuch as it is admitted by the
prosecution that the deceased caused hurt to the first accused,
we have no doubt in our minds that the situation at the scene
at the relevant point of time was such that it was necessary for
the accused to repel the force as part of self defence and they
were justified under that circumstance to have had invoked
their right of private defence. The decision of this Court in
Thomas @ Thomachan (supra) cited by the learned Public
Prosecutor was a case where the allegation against the
accused was that he criminally trespassed into the residence of
the victim and caused his death by stabbing the victim with a
knife. The contention put forward by the accused was that the
deceased attempted to assault him with bricks. It was in that
circumstances, this court took the view that even if the
contention of the accused is accepted for the sake of
arguments, still the accused cannot plead his right of private
defence against the above assault since it was he who
commenced the commission of the crime of criminal trespass
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by trespassing into the property of the deceased. The said
judgment, according to us, may not have any application to the
facts of the present case. In the case at hand, merely because
the accused teased the participants of the procession and
howled at them, even assuming the same to be true, according
to us, it cannot be said that the accused are aggressors. For
such trivial acts, no one would react in the manner in which the
deceased and others reacted, namely to detach themselves
from the procession and hit the first accused in front of his
shop.
23. At the same time, inasmuch as the deceased
and others were unarmed, we are of the view that the third
accused exceeded the right of private defence available to him
for, while exercising the said right, the act shall not be unduly
disproportionate to the injury which is sought to be averted or
which is reasonably apprehended [See Sikandar Singh v. State
of Bihar, (2010) 7 SCC 477]. Exception 2 to Section 300 IPC
provides that culpable homicide is not murder, if the offender,
in the exercise in good faith of the right of private defence of
person or property, exceeds the power given to him by law and
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causes the death of the person against whom he is exercising
such right of defence without premeditation, and without any
intention of doing more harm than is necessary for the purpose
of such defence. The fact that there was no premeditation on
the part of the third accused to cause the death of the victim
cannot be disputed. In the nature of the occurrence that took
place, according to us, it cannot be contended that the third
accused had any intention of causing more harm than was
necessary for the purpose of defence, especially since there
was no motive for him to have had inflicted such an injury on
the deceased. In the above circumstances, according to us, the
case on hand is one that would fall within the scope of
Exception 2 to Section 300 IPC. If that be so, the third accused
could have been convicted only under Part I of Section 304 IPC.
24. Coming to the sentence part, having regard to
the totality of the facts and circumstances of the case,
according to us, the appropriate sentence to be inflicted on the
first accused for the offence committed by him under Section
324 IPC is imprisonment for a period of six months and the
appropriate sentence to be inflicted on the second accused is
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imprisonment for a period of two months. Coming to the
offence committed by the third accused under Part I of Section
304 IPC, according to us, the appropriate sentence to be
inflicted on him is imprisonment for a period of ten years and
to pay a fine of Rs.10,000/- and in default of payment of fine to
undergo simple imprisonment for a period of one month.
25. In the result, the appeals are allowed in part,
altering the conviction of the first accused to the offence
punishable under Section 324 IPC and sustaining the
conviction of the second accused under Section 324 IPC and
also altering the conviction of the third accused to Part I of
Section 304 IPC. The sentence passed against accused 1 to 3
will also stand modified as indicated in paragraph 24 above.
The bail bond, if any, executed by the second
accused will stand cancelled. Registry is directed to
communicate the above order forthwith to the concerned
prison, where accused 1 and 3 are undergoing incarceration.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.PRATHEEP KUMAR, JUDGE.
YKB
