IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 CRL.A.No. 1003 of 2006 ------------------------ SC.149/2004 of ADDL. SESSIONS COURT, (FAST TRACK COURT-I), PALAKKAD .................... APPELLANT: ACCUSED. ---------------------- SUJANAPAL, S/O.CHANDRAN, KUNNATHUPARAMBU, PERINGOTTUKURISSI, PERINGOTTUKURISSI VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT: COMPLAINANT AND STATE. ------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/2/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== CRL.A. NO.1003 OF 2006 ============================ DATED THIS THE 25TH DAY OF FEBRUARY 2010 JUDGMENT Basant,J. Is the accused entitled to any right of private defence? Is such right available to enable him to claim absolution or extenuation? Notwithstanding the fact that the appellant/accused had not specifically raised such a plea of protection under the general exception of private defence, did the court below err in not considering the same? These are the questions that are raised before us for consideration in this appeal. 2. The appellant faces a sentence of imprisonment for life and a fine of Rs.10,000/- and a defaullt sentence to undergo rigorous imprisonment for a period of one year for the offence under Section 302 I.P.C. CRL.A.1003/2006 -2- 3. The prosecution alleged that there was some animosity between the appellant/accused Sujanapal and the deceased Raju @ Rajesh. On 6/10/2002 in the night at about 10.15p.m., the deceased Raju along with PW1 and one Manikyan were walking along the road in front of the shop of the accused. The accused is a barber by profession. It is the case of the prosecution that the deceased, who had consumed alcohol, entered the barber shop of the accused. There he was engaged in a wordy altercation to start with and later a physical altercation. This commenced inside the barber shop. Both of them moved out of the barber shop. At that juncture, PW1 and the said Manikyan (who is now no more) caught the deceased and persuaded him to go away from the scene. When they had moved about 20 feet away from the barber shop of the accused, the deceased allegedly in an act of defiance pushed aside PW1 and Manikyan and went towards the barber shop of the accused. At that juncture, the appellant/accused allegedly came out of the barber shop, took stones from the road, wrapped them in a towel and made use of it as a weapon. He swung the said MO.1 weapon at the deceased. The deceased was hit on the head. He CRL.A.1003/2006 -3- fell down. The attack continued. The deceased succumbed to his injuries. 4. The investigation commenced with Ext.P4 F.I.R. registered by PW7 on the basis of Ext.P1 F.I. statement lodged by PW1 at 2 a.m.on 7/10/2002. The investigation was completed and PW8 filed final report/charge sheet before the Magistrate. 5. The case was committed to the Court of Sessions. The learned Sessions Judge took cognizance of the offence. Charge was framed against the appellant-accused. He denied the offence. Thereupon, the prosecution examined PWs.1 to 8 and proved Exts.P1 to P6. MO.1 was also marked. 6. The accused, in the course of cross examination of the prosecution witnesses and when examined under Section 313 Cr.P.C., did not take up any specific defence. At some stage a total denial was attempted and at some others it was suggested that the deceased had fallen after the first incident and it was thus that he had suffered injuries. No defence witness was examined. Ext.D1 case diary contradiction was marked when PW1 was examined by the Prosecution. CRL.A.1003/2006 -4- 7. The learned Sessions Judge, on an anxious consideration of all the relevant circumstances, came to the conclusion that the prosecution has succeeded in proving the ingredients of the offence punishable under Section 302 I.P.C. Accordingly, the learned Judge proceeded to pass the impugned verdict of guilty, conviction and sentence. It may be apposite straight away to note that the plea of the right of private defence – one of the general exceptions of criminality recognized by the Penal Code was not specifically raised or urged before the court. The court below did not also consider the same. 8. Arguments have been advanced before us by the learned counsel Sri. P.Vijaya Bhanu on behalf of the appellant and Sri Noble Mathew, the learned Public Prosecutor for the State. The learned counsel for the appellant assails the impugned order on the following grounds: 1) The learned Sessions Judge erred in not realising that the availability of the right of private defence has to be considered by the court, whether such a plea has been raised or not by the accused, if the plea arises from the CRL.A.1003/2006 -5- nature of the evidence adduced by the prosecution. 2)The court below ought to have held that the accused did have a right of private defence and the accused was hence entitled to claim for absolution from liability. 3)At any rate, the verdict of guilty and conviction under Section 302 I.P.C. is not justified at all. 9. An appellate judgment must be read as a continuation of the judgment of the trial court. We are not, in these circumstances, proceeding to re-narrate in this appellate judgment the details of the oral and documentary evidence relied on by the rival contestants and also the other materials in favour of either side. We need only mention that the learned counsel have meticulously taken us through the oral evidence of PWs.1 to 8 and the documentary evidence, Exts.P1 to P6 and Ext.D1. We have also been taken through all other materials available in this case, which are relevant and cognisable under Section 3 of the Evidence Act. We shall refer to the materials wherever CRL.A.1003/2006 -6- necessary while discussing the relevant aspect. 10. The prosecution wanted to examine PWs.1,2 and 4 as witnesses to the occurrence. PW1 is an eye witness. He was present along with the deceased through out the incident. He had lodged Ext.P1 F.I.statement before PW7 at 2 a.m. on 7/10/2002. The incident had taken place on 6/10/2002 at 10.15 p.m.and within a period of four hours from the time of occurrence, he had lodged the F.I.S. The prosecution case primarily rests on the oral evidence of PW1. 11. PW2 did not support the prosecution case. He turned hostile completely so far as the incident proper is concerned. But he did support the version of the prosecution in respect of the incident that transpired earlier when the deceased entered the barber shop of the accused. PW2 supported the prosecution only to that limited extent. PW4, an employee /apprentice in the shop of the accused turned hostile completely. His evidence is not in any way useful to the prosecution. The court below found that the oral evidence of PW1, which is supported in part by the oral evidence of PW2, and corroborated satisfactorily by the contents of the prompt F.I.S.,Ext.P1, as also the nature of CRL.A.1003/2006 -7- injuries suffered by the deceased described in Ext.P2 postmortem certificate by PW5, can safely be accepted. An attempt was made by the learned counsel to assail this finding of fact before us. We must say that we do not find any merit in the challenge against the oral evidence of PW1. PW1's evidence is intrinsically and on broad probabilities inspiring. His evidence is supported eminently by the contents of the prompt F.I.S, which he had lodged before the police within four hours. His evidence is further supported by the nature of injuries described in Ext.P2. The court below had in detail adverted to the challenge against the evidence of PW1 on the basis of some innocuous omission, contradiction etc. We are in complete agreement with the court below that the oral evidence of PW1 can be accepted. 12. We will now try to ascertain what facts are established by the evidence of PW1. PW1's evidence clearly shows that there was some anterior incident which generated animosity between the accused and the deceased. The deceased along with PW1 and the said Manikyan were proceeding along the road in front of the barber shop of the accused. The deceased, suddenly and perhaps unanticipated by PW1 and the CRL.A.1003/2006 -8- said Manikyan, went into the shop of the accused and a quarrel ensued. Wordy altercation was followed by physical altercation. This commenced inside the barber shop and ended outside the barber shop. Thereafter, as prevailed upon by PW1 and the said Manikyan, the deceased proceeded about 20 feet from the barber shop of the appellant-accused. At that juncture, he allegedly turned back. PW1 and Manikyan could not restrain or stop the deceased. He pushed both of them aside and proceeded in anger towards the barber shop of the appellant-accused. At that juncture, the appellant picked two pieces of stones from the road in front, wrapped the same in a towel, which he had with him, and thus made the improvised weapon, MO.1. That weapon was swung at the deceased. The deceased suffered injuries. More than one contact was made by MO.1 on the head/face of the deceased. He fell with injuries. He succumbed to those injuries. 13. We find not a semblance of doubt to enter specific findings on fact on the above aspect. The court below, we find, had not specifically ascertained, identified and narrated the facts, which emanated from the oral evidence of PW1. We find CRL.A.1003/2006 -9- that in the facts of this case such specific ascertainment of the sequence of events is very important and crucial. We have hence chosen to ascertain and narrate the sequence of facts which can be held to be proved by the oral evidence of PW1. 14. The learned counsel for the appellant contends that if these are the facts proved by PW1 and the prosecution, the court was bound to consider the plea of right of private defence, which arises from the very nature of the evidence available in the case. Notwithstanding the fact that the appellant in his pre occupation with the defence of total denial had not specifically raised such a plea, such plea which arises from proved facts must have been considered by the court below, urges counsel. 15. We have no hesitation to agree with the learned counsel for the appellant. Section 105 of the Evidence Act mandates that a court shall presume the absence of circumstances which bring a case within one of the general exceptions. It would be totally erroneous to sail to a conclusion from the language of Section 105 of the Evidence Act that the accused must plead and prove his defence under one of the general exceptions in a manner in which a plea is raised in a civil CRL.A.1003/2006 -10- case. A specific plea, it is trite, need not be raised. It is enough if at the end of the trial on the basis of the evidence relied on by the prosecution, the defence is able to point out to the court that a plea of protection under the umbrella of private defence arises from the evidence available on record. The appellant-accused is then entitled to the benefit of that plea. If there are no materials to support the plea under section 105 to spare the accused,he cannot justifiably claim protection under any of the general exceptions; but not so, when there are materials available to probabilise such a plea. If precedent is necessary on this aspect, we need only advert to the decision in Bahadur Singh and another v. State of Punjab,[(1992)4 S.C.C.503]. 16. We have no hesitation to agree that in the facts of this case, the availability of the right of private defence to claim absolution or extennuation for the appellant must be considered by this Court and must have been considered by the court below. Before re-visiting the facts, we shall now briefly advert to the relevant provisions in the Penal Code about the right of private defence. Sections 96 to 106 of the I.P.C.deal with the right of private defence. When it comes to the right of CRL.A.1003/2006 -11- private defence of body, relevant sections having a bearing on the facts of this case are Sections 96, 97(First), 99, 100, 101 and 102. Nothing is an offence which is done in the exercise of the right of private defence declared in Section 96. Section 97 declares that such right of private defence is available to every person to defend his body as also property. Such right of private defence, Section 99 declares, can in no case extend to the infliction of more harm than is necessary to inflict for the purpose of defence. Section 100 declares that such right of private defence may extend to causing of death under the six eventualities enumerated in Section 100. For the purpose of our case on hand only first and second of those circumstances may be relevant. Section 101 further declares that the right of private defence in all other cases may extend to the causing of any harm other than death in the attempt to defend the body. Section 102 finally states that this right of private defence of body commences as soon as a reasonable apprehension of danger to the body is perceived and continues as long as such apprehension of danger to the body continues. 17. We shall now revisit the facts. It is trite now that the CRL.A.1003/2006 -12- availability and extent of the right of private defence is not to be gauged or judged by the cold objective standards of a court room. A court has to ascertain the availability and extent of such defence positioning itself in the shoes of the person who apprehends such danger to his body. Here again, it is unnecessary to refer to precedents. We now try to ascertain the mind-set of the appellant-accused. He was carrying out his activities as usual. Without any provocation from him, we find the deceased who had an animus against the accused on account of some earlier incident barged into the barber shop. Wordy altercations followed by a physical altercation ensued. It started in the barber shop. It extended to the area outside the barber shop. Therefore, the friends of the deceased, PW1 and Manikyan prevailed upon him and took him away from the scene. They were thus proceeding away from the barber shop of the accused. 18. At this juncture, there is a dispute as to whether the appellant uttered any words derogatory to the father of the deceased. Specific averments in Ext.P1, which is obviously not expected to be an encyclopedia, do not show that there was any CRL.A.1003/2006 -13- such overt act on the part of the appellant against the deceased. A reading of Ext.P1 would suggest that the deceased was perturbed and triggered by something that the appellant had said not after the end of incident No.1 but something that was uttered in the course of incident No.1. We do not think that the distinction is crucial for the ascertainment of the existence of the right of private defence. We have unimpeachable evidence from PW1 that despite their attempts to stop the deceased from returning to the shop of the appellant, he pushed them aside and in anger proceeded towards the barber shop of the accused- appellant. In fact, the precise words used by PW1 “ഞങള തട വ ഴ ” must suggest that they were pushed and they fell. At any rate even without placing undeserved emphasis of semantics/ language used by the deceased, it is evident that after returning from the shop of the appellant after the first incident, after proceeding about 20 feet from the place of incident, he pushed his friends aside and returned in anger to the shop of the appellant. Did the appellant at that point of time have a right of private defence? This is the million dollar question that arises for consideration. We perceive the mind-set CRL.A.1003/2006 -14- of the appellant. The deceased barged into his shop. He was prevailed upon to return after the wordy and physical altercation that ensued. The deceased was not amenable to the restraint by his friends. He was returning in anger to the shop of the appellant. We have no hesitation whatsoever to conclude that the appellant had the basic circumstances to reasonably apprehend harm or danger to his body. Of course, the deceased was unarmed going by the evidence of PW1. Whether the right of private defence existed or not has got to be considered first? We would in the facts of the case unhesitatingly agree to say that such right of private defence existed in favour of the appellant. He was justified under Section 102 of the I.P.C. in apprehending danger to his body. He had the right under Section 97(first part) to defend his body. If he had pushed the deceased away or had indulged in such conduct at that juncture to avert danger and to deter the attack on him, he was certainly protected under the right of private defence available to him under Section 97 (former part). CRL.A.1003/2006 -15- 19. The appellant-accused attempts to build up a contention that MO.1 weapon was not in his possession. Relying on the oral evidence of PW2, he contends that the deceased was having a carry bag (pick up is the word used by PW2) with him when he initially entered the shop of the appellant. According to the Prosecutor, MO.1 must have been available in that carry bag and the deceased must have used that weapon initially. This remains in the realm of a totally unsubstantiated and fanciful theory. Such a suggestion has not been thrown even at PW1 or PW2. Such a specific stand has not been taken in his 313 examination. We are, in these circumstances, satisfied that the oral evidence of PW1 and the contents of Ext.P1 that it was a hurriedly improvised weapon which the appellant made available to himself at the scene can be accepted. The learned counsel for the appellant submits that even that version can only help him. It was a barber shop. The availability of sharp instruments can easily be perceived. Of course, the Prosecutor contends that in these days of threat of AIDS, sharp razors may not be available in the barber shop. What we intend to take note of is only that MO.1 weapon which the appellant allegedly used was certainly CRL.A.1003/2006 -16- a hurriedly improvised weapon which was pressed into service by the appellant. This is helpful for the court in deciding whether the appellant was an aggressor or was defending his body. The nature of the weapon also is one which probabilises the theory of existence of the right of private defence in favour of the appellant. 20. The deceased was unarmed. There is nothing to indicate that he had any weapon available with him. He had of course consumed alcohol. To decide whether the right of private defence extended to causing of death, the appellant will have to bring his case within clauses (1) and (2) of Section 100 I.P.C. A reasonable apprehension of death or grievous hurt otherwise, are the circumstances enumerated in clauses (1) and (2) of Section 100. We are unable to agree in the facts and circumstances of this case that the appellant could have anticipated death or grievous hurt at the hands of the unarmed deceased when he found him proceeding in anger towards his shop. In these circumstances, we are of the opinion that by no stretch of imagination can it be held that Section 100 IPC comes to the rescue of the appellant. It is only Section 101 which he CRL.A.1003/2006 -17- can rely on. 21. That the deceased died of injuries inflicted on him by the appellant with M. O.1 is established satisfactorily. The offence under Section 299 I.P.C.is established without any dispute. Fatal injury being sufficient in the ordinary course of nature to cause death as opined by PW5, the offence must clearly fall under clause (thirdly) of Section 300 I.P.C. It is contended that an intention to cause the injury which actually resulted cannot be readily drawn. We disagree. Any person who attempts to use MO.1 to cause injury on another must be assumed and presumed to have intended to cause the injury like the fatal injury described in Ext.P2., which actually resulted. In these circumstances, the offence of culpable homicide committed by the accused must get exalted to the offence of murder under clause (3) of Section 300. 22. The only question is whether the offence can be brought down again to Section 299 by sliding back to the offence in the light of any one of the exceptions under Section 300 I.P.C. The learned counsel for the appellant argues that the case of the appellant must squarely fall within Exception 2. He CRL.A.1003/2006 -18- had a right of private defence. He had apprehended danger to the body under Section 102. Under Section 97(first part), he had the right to defend his body. Under Section 101, he could have caused any harm other than death. To defend himself, he did proceed to cause death of the deceased. Therefore, he is entitled to the protection of Exception 2. We hold that in the circumstances of the case the offence slides back to the offence of culpable homicide not amounting to murder and the offence would fall squarely under Section 304 Part-I I.P.C. We are in these circumstances satisfied that the challenge in this appeal is bound to succeed to the above limited extent, i.e., the conviction is to be altered from Section 302 I.P.C. to 304(1)I.P.C. 23. What would be an appropriate sentence consequent to alteration of the conviction is the short point that now remains for consideration. After discussions, we are satisfied that imposition of a sentence of rigorous imprisonment for a period of eight years and the impugned sentence of fine and the default sentence shall eminently meet the ends of justice. In the facts and circumstances of this case, the challenge in this appeal thus succeed to the above extent only. CRL.A.1003/2006 -19- 24. In the result: a) this appeal is allowed in part. (b) the verdict of guilty, conviction and sentence imposed on the appellant are altered and reduced. In supercession of the sentence imposed on the appellant under Section 302 I.P.C., he is found guilty, convicted and sentenced under Section 304(1)I.P.C. to undergo rigorous imprisonment for a period of eight years. Sentence of fine imposed by the court below and the default sentence are upheld. (c) The direction to set off, needless to say, is upheld. 25. Communicate this judgment to the court below and the prison authorities immediately. The court below shall forthwith issue a revised warrant of conviction. R. BASANT, JUDGE M.C. HARI RANI,JUDGE CRL.A.1003/2006 -20- ks.