Telangana High Court
Naveen Kumar Sirohiwal, vs The State Of Ap Rep By Its Pp Hyd., on 15 July, 2022
Bench: K.Surender
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.1111 OF 2008
Between:
Naveen Kumar Sohiwal ... Appellant
And
The State of Andhra Pradesh,
rep. by its Public Prosecutor,
High Court for the State of A.P,
Hyderabad. ... Respondent.
DATE OF JUDGMENT PRONOUNCED: 15.07.2022
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to Yes/No
see the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their
Ladyship/Lordship wish to see Yes/No
the fair copy of the Judgment?
2 KS,J
Crla_1111_2008
* THE HON'BLE SRI JUSTICE K.SURENDER
+ CRL.A. No.1111 of 2008
% Dated 15.07.2022
# Naveen Kumar Sirohiwal ... Appellant
And
$ The State of Andhra Pradesh,
rep. by its Public Prosecutor,
High Court for the State of A.P,
Hyderabad. ..Respondent.
! Counsel for the Appellant: N.Avaneesh
^ Counsel for the Respondent: Public Prosecutor
>HEAD NOTE:
? Cases referred
1
(1975) 4 Supreme Court Cases 518
2 2022 SCC OnLine SC 739
3 2022 (1) ALT (Crl.) 222 (A.P)
3 KS,J
Crla_1111_2008
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1111 OF 2008
JUDGMENT:
1. The appellant was convicted for the offence under Section
304 Part-II IPC on two counts and sentenced to undergo
rigorous imprisonment for a period of ten years for causing
death of two persons namely Sanoy Cherian and Sanjay Giri
(herein after referred to as 'D1' and 'D2' respectively) who were
3rd year students of Hotel Management, vide judgment dated
01.09.2008 in S.C.No.130 of 2007 passed by the learned
Metropolitan Sessions Judge, Hyderabad (for short 'the
learned Sessions Judge').
2. The appellant/accused is student of first year in Indian
Institute of Hotel Management at D.D.Colony, Bagh Amberpet.
On 31.07.2006 at about 6.00 p.m, the appellant along with
P.W.2, went from college to New Nallakunta and while
returning, purchased beer bottle which was noticed by D1, D2
and P.W.19, who questioned the appellant and P.W.2 about
consuming beer and bringing disrespect to the institute.
While P.W.2 and the appellant were trying to run away, they
4 KS,J
Crla_1111_2008
were forcibly brought to the room in TRT No.104, where the
deceased and other seniors were staying on rent. When D2
was enquiring about the incident and threatened to inform the
lecturers in the institute, the appellant allegedly took chef
knife on the table and stabbed D1, who received bleeding
injuries and went out of the gate and fell near gate. One
Himanshu Kathuria tried to catch the appellant. However,
P.W.19 went out and saw D1 falling near the gate and bleeding
profusely. Meanwhile the appellant ran out with blood stains
on shirt. P.W.19 went inside and he saw D2 was lying on
ground in between two cots with bleeding injuries on chest
and shoulder. Accordingly, both the deceased were taken to
the hospital, where they were declared dead.
3. P.W.2, who is the friend of the appellant and the
appellant were both in the first year. PW2 stated that on the
said date, the appellant purchased beer and two senior
students, who were D1 and D2 saw them. On seeing them,
they started running into lanes. However, those two senior
students (D1 and D2) chased and caught hold of P.W.2 and
5 KS,J
Crla_1111_2008
the appellant and took them to the room in TRT No.104. In
that room, there were four or five other senior students apart
from D1 and D2, who took them inside. Then, both D1 and D2
and other senior students started questioning P.W.2 and the
appellant. P.W.2 was asked to kneel down and remove his
shirt, then suddenly, he heard voice from behind and when he
turned back, the appellant was holding a knife and did not
know who were attacked by the appellant. P.W.2 ran out of
the gate and he also saw the appellant coming out of the room
with blood stained shirt. D1 was bleeding profusely and fell
near the gate and the D2 was found inside the room.
4. The prosecution examined PWs.16, 17 and 19, who were
senior students present in the room i.e., TRT No.104,
Vidyanagar. P.Ws.16,17 and 19 and others were tenants in
the said room/quarter. They also deposed that they saw the
appellant stabbing both the deceased.
5. On the basis of evidence of P.Ws.2, 16, 17 and 19, the
learned Sessions Judge found that it was the appellant herein,
who had inflicted injuries causing death of D1 and D2, who
6 KS,J
Crla_1111_2008
were senior students. However, found that there was no
intention on the part of the appellant to kill the deceased as
such the appellant was convicted under Section 304 Part-II of
IPC and not under Section 302 of IPC.
6. Learned Senior Counsel N.Ramchander Rao appearing
for Sri N.Avaneesh counsel for the appellant submits that this
is a case of right to private defence. The appellant had no
other way but to defend himself from the seniors, who
attacked him, abused him and also made him to kneel down
on the floor asking him to take off his shirt and did obscene
things. Due to the sudden provocation, the appellant had no
other option but to safeguard himself from seniors who are
both D1 and D2, P.Ws.16, 17, 19 and others, stabbed the
deceased in the self defence. He submits that even according
to PW.2, he was also present in the room when senior
students along with D1 and D2 were questioning them and
asked them to kneel down and remove shirts and the seniors
got angry for the reason of the appellant not answering the
questions. In the said circumstances, the only logical
7 KS,J
Crla_1111_2008
conclusion that can be drawn is that the appellant was over
powered by nearly 8 to 9 senior students and the appellant
was ragged and made to sit on the floor by taking out shirt, for
which reason, the appellant acted in self defence. The acts of
the appellant fell within the ambit of Section 100 of IPC, as
such, the appellant has to be acquitted of the charge under
Section 304-PartII of IPC. In support of his contention, he
relied on the judgments reported in the case of i) Puran Singh
v. State of Punjab1, wherein the Hon'ble Supreme Court held :
"18. The second point that falls for determination is as to what is the
extent of right of private defence which the accused can claim in this
case? In this connection, the High Court has given a finding that
since the prosecution party had entered the land in possession of the
accused and were trying to plough it, the appellants should have
taken recourse to the public authorities instead of indulging in free
fight with the prosecution. In other words, the High Court found that
the right of private defence available to the accused was under the
limitations provided for in Ss. 99 to 102 of the Indian Penal Code and
these limitations apply to the facts of the present case, and the
accused cannot claim any right of private defence. With respect we
find ourselves unable to agree with this somewhat broad statement of
the law. It is true that the right of private defence of person or
property is to be exercised tinder the following limitations:
(i)that if there is sufficient time for recourse to the public authorities
the right is not available;
(ii)that more harm than necessary should not be caused;
(iii)that there must be a reasonable apprehension of death orof
grievous hurt to the person or damage to the property concerned."
(1975) 4 Supreme Court Cases 518
8 KS,J
Crla_1111_2008
ii) Ex.Ct.Mahadev v. Director General, Boarder Security
Force and others2, the Hon'ble Supreme Court held as follows:
"21. To sum up, the right of private defence is necessarily a
defensive right which is available only when the circumstances so
justify it. The circumstances are those that have been elaborated in
the IPC. Such a right would be available to the accused when he or
his property is faced with a danger and there is little scope of the
State machinery coming to his aid. At the same time, the courts
must keep in mind that the extent of the violence used by the
accused for defending himself or his property should be in
proportion to the injury apprehended. This is not to say that a step
to step analysis of the injury that was apprehended and the violence
used is required to be undertaken by the Court; nor is it feasible to
prescribe specific parameters for determining whether the steps
taken by the accused to invoke private self-defence and the extent of
force used by him was proper or not. The Court's assessment would
be guided by several circumstances including the position on the
spot at the relevant point in time, the nature of apprehension in the
mind of the accused, the kind of situation that the accused was
seeking to ward off, the confusion created by the situation that had
suddenly cropped up Civil Appeal No.2606 of 2012 resulting the in
knee jerk reaction of the accused, the nature of the overt acts of the
party who had threatened the accused resulting in his resorting to
immediate defensive action, etc. The underlying factor should be
that such an act of private defence should have been done in good
faith and without malice."
iii) In Arvind Kumar v. State of Rajasthan3 the Hon'ble
Supreme Court held as follows:
"56. The evidence adduced on behalf of the prosecution,
particularly, the eyewitnesses do not inspire confidence. While there
2022 SCC OnLine SC 739
2022 (1) ALT (Crl.) 222 (A.P)
9 KS,J
Crla_1111_2008
is a clear denial of them having attacked the injured accused persons,
a mere statement that they carried logs would not be sufficient to
reject the plea of private defence especially in the light of the injuries
suffered. The witnesses speak of multiple injuries suffered by the
deceased and the other injured witnesses. The view that the evidence
of an injured witness has to be placed at a higher pedestal may not
apply to a case of private defence with the accused also injured. The
doctor's evidence does not support the specific overt act. Witnesses
speak of knife, farsi and spears being used at random. The overt act
attributed to the convicted accused using weapons such as farsi do
not correspond to the injuries. The injuries are primarily lacerated in
nature. This discussion we make in addition to our primary
conclusion we arrived at already. Suffice it to note that the genesis
and origin of the occurrence and the manner in which it took place
are certainly suppressed. When the plea of private defence is taken,
the quality of material evidence will have to be a bit higher than that
of the one required in a normal circumstance. We are concerned with
the role of the prosecution in proving the case beyond reasonable
doubt. Unfortunately, two lives have been lost. However, mere
suspicion on a moral ground can never be the basis for a conviction.
We can only lament that the situation has been brought forth by the
unwarranted approach of the prosecution. Incidentally, we approve
the views of the High Court on the acquittals rendered.
59. After going through the judgments on four occasions by both
the courts, we find that the convictions rendered are to be interfered
with in the light of the discussions made. The evidence adduced is not
separable and the common findings rendered shall be made
applicable to all the accused. There are too many loopholes which
cannot be filled up, nor is there any evidence to come to a different
conclusion including that of exceeding the right of private defence.
What emerged as a civil dispute between two groups of villagers
turned into a criminal case.
60. We are thus inclined to hold that the Accused-Appellants are
entitled to the benefit of doubt as we also give our imprimatur to the
plea of private defence as possible and plausible with due discharge of
onus."
By relying on the aforesaid decisions, it was argued that
private defence exists in the present facts and circumstances
of the case, for which reason, benefit of doubt has to be
extended to the appellant.
10 KS,J
Crla_1111_2008
7. On the other hand, Sri Sudershan, learned Assistant
Public Prosecutor submits that the appellant had inflicted four
incise wounds on D2 and according to P.W.10, inflicted six
incised/stab injuries on D1, as such, it cannot be said that he
was acting in self defence. As seen from the number of
injuries, the appellant had exceeded his right of private
defence and the protection under Section 100 of IPC cannot be
extended to the appellant.
8. The evidence of P.W.2 discloses that the appellant and
P.W.2 are students in the first year and D1, D2, P.W.16, 17,
19 and others were studying third year Hotel Management
course. The said senior students along with D1 and D2 were
staying at TRT No.104, Vidyanagar as tenants. On seeing the
seniors, according to P.W.2, they went into lanes and
thereafter, the appellant had consumed beer in the said by-
lane. D1 and D2 chased the appellant and P.W.2 and forcibly
took them to their quarter. It is further the evidence of P.W.2
that he was made to sit on the floor by removing the shirt in
the presence of 8 to 9 senior students.
11 KS,J
Crla_1111_2008
9. P.Ws.16, 17 and 19 did not dispute that P.W.2 and the
appellant were taken to the quarter and also that they were
questioned by them, who were seniors. However they stated
that it was the appellant who attacked them without any
reason. It is apparent from the evidence on record that both
P.W.2 and appellant were afraid of the seniors ragging them,
for which reason on seeing the seniors (D1 and D2), P.W.2 and
appellant fled and ran into by-lane in the colony.
10. In the scenario of seniors ragging juniors, it can be said
that the appellant and P.W.2 were afraid of the seniors
because of their ragging and also were angry with the conduct
of the seniors ragging them.
11. From the circumstances of the present case, it is evident
that both P.W.2 and the appellant were forcibly taken to the
seniors' room, where they were made to sit on the floor and
asked to remove their shirts. Admittedly, P.W.2 stated that the
appellant was in a drunken state. The circumstances
regarding; i) the appellant and P.W.2 running away into by-
lane on seeing the seniors and thereafter they were caught by
12 KS,J
Crla_1111_2008
D1 and D2 ii) having brought them to the room, they were
forced to kneel on the floor and shirts were taken off. The
said circumstances indicate that the appellant was afraid of
seniors and had consumed beer. He was ragged by nearly 8-9
seniors by making to sit on the floor and asked to remove his
shirt. Admittedly, P.W.2 and the appellant were questioned as
stated by P.W.2, 16, 17 and 19. It is not the case of the
prosecution that the appellant was having any knife in his
possession. The said knife with which the D1 and D2 were
attacked was picked up from the room according to the
prosecution. When the situation is visualized, it appears that
the appellant, who was in drunken state was over powered
and ragged by the seniors, who were nearly 8 to 9 in number.
In the said circumstances of scare, anger and trying to protect
his dignity, the attack by the appellant can be assessed to be
a result of all the three factors.
12. In the present facts and circumstances the violent
reaction due to temporary insanity cannot be ruled out. The
appellant could not have been in a situation to assess the
13 KS,J
Crla_1111_2008
wrongfulness of his acts. Further the stabbing appears to have
been due an irresistible impulsive action unable to distinguish
right from wrong in the situation he was in. In the said
circumstances, benefit of doubt is extended to the appellant
herein.
13. In the result, the conviction and sentence imposed by the
learned Sessions Judge vide judgment dated 01.09.2008 in
S.C.No.130 of 2007 is set aside. Since the appellant is on bail,
his bail bonds stand cancelled.
14. Accordingly, the Criminal Appeal is allowed. As a sequel
thereto, miscellaneous petitions, if any, shall stand closed.
__________________
K.SURENDER, J
Date: 15.07.2022
kvs
14 KS,J
Crla_1111_2008
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1111 OF 2008
Date: 15.07.2022.
kvs
15 KS,J
Crla_1111_2008
