A.M Shaffique, J.:— This appeal has been filed by the appellant, who is the sole accused in S.C No. 606 of 2012 of the Court of the Additional Sessions Judge, Palakkad Division at Ottappalam, challenging the judgment of conviction and order of sentence passed by the said Court, by which the appellant is found guilty for offence under Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) with a default stipulation of one year.
2. The prosecution case, in brief, is that, on 28/02/2010, at 12.30 p.m, the appellant quarreled with the deceased Girish Kumar in the tailoring shop of the appellant namely ‘Imberiyal’ in room no. 915 of ward no. IV of Agali Gramapanchayath, situated at Goolikadavu, on the first floor of K.V.K Building since the deceased suspected that the accused had made an allegation that the deceased and a lady employee who had been working in the shop of the appellant was having illicit relationship. During the said quarrel, the appellant with the intention of murdering Girish Kumar, stabbed him on the left side of his neck with a scissors and thereby committed the murder of Girish Kumar.
3. Prosecution examined PWs 1 to 14 as witnesses, marked documents Exts.P1 to P20 and identified MO1 to MO8. No defence evidence was adduced. However, Ext.D1 contradiction is marked at the time of the cross-examination of PW2. In 313 examination, the appellant denied the incriminating evidence against him and pleaded innocence.
4. Learned Senior counsel appearing for and on behalf of the appellant Sri. B. Raman Pillai argued that the trial Court failed to appreciate the evidence in its entirety and arrived at a wrong conclusion finally. The case at hand is a clear case of exercise of right of private defence and the entire incident happened at the instance of the deceased alone. Appellant herein was in his tailoring shop doing his job for winning daily bread. Deceased came there with an intention to cause trouble and he in fact destroyed the entire room by throwing away the sewing machines and also entering into scuffle and fight with the appellant without any provocation. If at all he had caused the injury, the appellant was exercising his right of private defence of his body and property and he had no intention to kill the deceased. Crucial witnesses were not examined. Motive is not proved by the prosecution. The genesis of the incident is not at all revealed from the prosecution case. In any means, the evidence would show that the deceased was the aggressor. This is a case where a poor tailor was attacked by a man of better physique and in the process of saving his life and property, the deceased sustained injuries. The trial Court ought to have acquitted the appellant by legitimately recognizing the right of private defence exercised by the appellant. He pleaded for an acquittal based on private defence. He relied on the decision of the Apex Court in Darshan Singh v. State of Punjab [(2010) 2 SCC 333], wherein certain principles had been laid down, which reads as under:—
“58. The following principles emerge on scrutiny of the following judgments:
(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.
(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.
(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
(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.”
5. On the other hand, the learned Public Prosecutor argued that the case at hand shall not come under the general exception enumerated under the head of right of private defence. The deceased was unarmed. He was attacked by the appellant with a scissors on the very vital part of his body i.e, on the neck. There are clinching evidence including the ocular version of the eye-witnesses to prove the guilt of the appellant. The recovery, medical and other evidence conclusively proves the intention and involvement of the appellant. The trial Court is justified in arriving at the present conclusion and hence no interference is called for.
6. We heard both the counsel in detail and perused the records.
7. The question is whether the Court below was justified in arriving at its present conclusion. The appeal at hand requires us to decide mainly the following aspects which were at controversy throughout the arguments of the counsel appearing on either side.
Point No. 1 Whether the appellant herein had committed the overt act which resulted in the death of Girish Kumar?
Point No. 2 Whether the appellant herein had the intention to commit the murder of the deceased as alleged by the prosecution?
Point No. 3 Whether the appellant had proved his case that he exercised only his right of private defence of body and property within the permissible limits?
8. Evidence adduced in the case, in brief, are as under:—
PWs 1, 2 and 4 are cited as eye-witnesses to the incident.
9. PW3 is the owner of the jeep in which the injured was taken to hospital.
10. PW5 is an attestor to Ext.P3 seizure mahazar of dress items of the deceased (MO2 to MO4 series).
11. PW6 is a police constable who is an attestor to Ext.P4 seizure mahazar of the dress of the appellant (MO5 and MO6).
12. PW7 is the then police surgeon attached to District Hospital, Manjeri who conducted post-mortem on the body of the deceased. He issued Ext.P5 post-mortem report. He noted the following injuries:—
“Injuries (Ante-mortem) External:—
1. Two incised wounds, inner wounds 2.5 × 1.5 × 1cm and outer wound 2.5 × 1 × 4cm at 0.2 cm apart involving left side of neck, both are almost elliptical and at same level and horizontal having sharp margins except for slight irregularity at certain portions, lower inner end of the inner wound at the midline front and at 5 cm above suprasternal notch.
2. Contused abrasion 1 × 1 cm involving outer aspect of left hip, upper inner end at 6 cm below top of hip and at 2.5 cm outer to midline front.
Internal:—
1. Two incised wounds 2 × 1 × 0.5 cm each oblique elliptical having sharp margins and tapering ends, one at front and other on back aspect of left side of larynx and soft tissues, penetrates into laryngeal cartillages through both aspects, upto and leaving intact the mucosa of the laryngeal cavity. The upper ends of both wounds are at 5.00 cm below the root of tongue and outer end corresponds with outer margin of outer wound of external injury No. 1.
2. Spinal column showed partial fracture of body of C7 vertebra on left side where some bone chips, one end of bone chips are attached to spinal column, are seen penetrating through wound on back aspect of larynx.
3. Entire soft tissues of neck infiltrated with blood.”
13. According to him, the cause of death is stab injury to the neck.
14. PW8 is an attestor to Ext.P6 seizure mahazar of MO1 scissors allegedly recovered at 11.30 a.m on 02/03/2010.
15. PW9 is an attestor to Ext.P7 scene mahazar prepared at 09.30 a.m on 01/03/2010. He also identified MO7 and MO8 series blood-stained slippers from the scene of crime.
16. PW10 was the then Grama Panchayath Secretary, Agali. He issued Ext.P8 ownership certificate with reference to the shop in which accused was conducting business.
17. PW11 was the SI of Police, Agali. He recorded Ext.P1, FIS of PW1 and registered Ext.P9 FIR.
18. PW12 was the police constable who did the body bandhavas duty.
19. PW13 was the C.I of Police, Agali. He conducted the inquest and prepared Ext.P2 inquest report. On 01/03/2010, at 09.30 a.m, he prepared Ext.P7 scene mahazar and seized bloodstains from the verandah of the tailoring shop of the appellant and also MO7 and MO8 series blood-stained chappals. He also seized MO2 to MO4 series dress of the deceased as per Ext.P3 from PW12. The appellant was arrested from Nellipathi and Ext.P10 is the arrest memo and Ext.P11 is the inspection memo. Ext.P12 is the remand report. MO5 and MO6 dresses worn by the appellant were seized by Ext.P4 seizure mahazar. He recovered MO1 scissors from the drawer of the shop based on the disclosure statement Ext.P6(a) of the appellant through Ext.P6 recovery mahazar. Ext.P13 report and Ext.P14 site plan were also produced. Ext.P15 is the forwarding note for sending MO1 to MO3 for chemical examination and Ext.P16 is the report. The report shows that the said items contain human blood. Exts.P17 to P19 are the property list. After completing the investigation, he filed the charge-sheet.
20. PW14 is the photographer through whom Ext.P20 series photographs of the deceased were marked.
Point No. 1 Whether the appellant herein had committed the overt act which resulted in the death of Girish Kumar?
21. To prove the case against the appellant, prosecution primarily relied on the depositions of PWs 1, 2 and 4 who are cited as eye-witnesses to the alleged incident. PW1 gave Ext.P1 FI Statement based on which PW11, the S.I of Police, registered Ext.P9 FIR. PW13 conducted the investigation and filed the charge-sheet. PW2 is conducting a tailoring shop near the place of occurrence. PW3 is a taxi driver who came to the scene of crime hearing commotion. He took the injured to the hospital. PW4 is a lorry driver and he is an attestor to Ext.P2 inquest prepared by PW13. All the above witnesses except PW3 who was not an eyewitness, categorically deposed that they saw the appellant stabbing the deceased with MO1 scissors. Nothing is brought out in the cross-examination of these witnesses to discredit their evidence. Ext.P5 is the post-mortem report of the deceased prepared by PW7, the Police Surgeon. It is his version that the deceased died due to stab injury to the neck. He further clarified that the injuries were not accidental but purposefully inflicted. The injuries are fatal and are sufficient to cause death in the ordinary course of nature. The said injuries are possible by MO1. Ext.P16 shows that MO1 contained human blood. The suggestion of the defence that the said injury was caused due to accidental fall is already ruled out in medical evidence. Hence, the evidence of PWs 1, 2, 4 and 7 would clearly prove that the appellant caused the injury to the deceased and it was fatal and that resulted in his death. Hence, the point is found in favour of the prosecution.
Point Nos. 2 and 3
22. To avoid repetition and for the sake of convenience and clarity, both point nos. 2 and 3 can be taken together.
23. Coming to the overt act of the appellant, there is no doubt about the fact that the fatal injury was inflicted on the deceased by the appellant and it was on the vital part of the body and the injury was sufficient to cause the death of the victim. The prime question is whether the appellant was having the mens rea to commit the offence. It apparently needs to be gathered from the facts and circumstances of the case.
24. It is true that PWs 1, 2 and 4 categorically deposed that they saw the appellant stabbing the deceased with MO1 scissors. To get a clear picture of the entire episode, we need to look into the evidence of these witnesses carefully.
25. PW1 is a carpenter by profession. He knew both the appellant and the deceased. He was working in a boy's hostel at Nellipathy along with three others. It is his version that he witnessed the incident and it happened on 28/02/2010 at 12.30 p.m On the date of incident, he reached at Goolikadavu for having meals from Malabar hotel situated in Chittur road. According to him, when he reached at the Malabar hotel, he heard a wordy altercation in the tailoring shop of the deceased namely ‘Imbiriyal’ which was situated on the upstairs of the hotel. He saw the scuffle between the deceased and the appellant in front of the tailoring shop of the appellant. It is his version that both of them fell down to the ground. Then the appellant stood up and took a pair of scissors from the table and stabbed on the left side of the neck of Girish Kumar due to which he fell down. Immediately, the injured was taken to the hospital in the jeep of PW3 and he accompanied them. He gave Ext.P1 FIS and identified MO1 scissors. He had shown the place of occurrence to PW13, the CI of Police.
26. PW2 is a neighbour of the appellant and the deceased. He conducts another tailoring shop at the nearby building. According to him, the incident occurred around 12.30 p.m on 28/02/2010. While he was going out from his shop to have tea, he heard quarrel from the shop of the appellant. He went there. Several people gathered there. It is his version that he witnessed the scuffle between the appellant and the deceased. According to him, during the said fight, they fell down. But they stood up. Then the appellant took out a pair of scissors and stabbed on the neck of Girish Kumar. During cross-examination, he had a new case that the appellant caught hold of the neck of Girish Kumar with his left hand and stabbed on the neck with the scissors with his right hand. There was profuse bleeding. The deceased fell down prostrate on the verandah. He identified MO1. Ext.D1 is marked through him. He only had hearsay information about the motive of the crime.
27. PW4 is a lorry driver. He stated that the incident occurred around 12.30 p.m on 28/02/2010. He was standing in front of Malabar hotel at Goolikadavu. The appellant was conducting a tailoring shop in the upstairs of the hotel. It is his deposition that he heard a quarrel from there. So, he went there and found that a sewing machine was lying on the floor. Then he saw the deceased pushing the appellant down. Thereafter the appellant got up and took out the scissors and stabbed on the left side of the neck of the deceased. There was profuse bleeding. The deceased fell down. He along with PWs 1, 2 and others took the injured in the jeep of PW3 to Agali hospital. He is an attestor to Ext.P2 inquest report. He identified MO1 scissors also.
28. The motive alleged by the prosecution was that the appellant spread rumour about the deceased having illicit relationship with one of the lady staff of the appellant and the deceased came to the shop of the appellant to enquire about it. But it is seen that apart from the hearsay evidence of PWs 1, 2 and 4, no evidence was adduced by the prosecution to prove the alleged motive. The lady is also not examined as a witness. No particulars of the lady are available. Hence, it is rather clear that prosecution failed to prove the motive alleged against the appellant.
29. The prosecution version is that the recovery of MO1 was effected on the basis of the disclosure statement of the appellant on 02/03/2010 from the drawer of the tailoring shop. But it can be seen that detailed scene mahazar was prepared on the very same day of the alleged incident. What made the officer concerned, not to check the drawer alone in which the weapon of offence was allegedly kept, is rather curious. We agree with the trial Court in holding that the said ‘stage show recovery’ is not admissible in evidence under Section 27 of the Evidence Act in the case and is of no use to the prosecution.
30. It can be seen that regarding the inception of the incident, prosecution does not have a convincing case. The prosecution has not proved any fact which throws sufficient light to the genesis of the incident. How the incident started is still not known to Court. The evidence at hand shows that, on the date of incident, the appellant was working in his shop and it is the deceased who reached there. Even according to the prosecution, the deceased had motive capable of driving to make an issue with the appellant. It is not the other way around. From the available evidence, it can be seen that the deceased either would have unlawfully entered into the tailoring shop of the appellant or would have lawfully entered in and unlawfully remained there in the first place and hence the offence of criminal trespass is made out. The depositions of PWs 1 to 4 and the scene mahazar clearly shows the signs of violent scuffle in the tailoring shop belonging to the appellant. This shows that the real aggressor was not the appellant but the deceased. Evidence clearly shows that there was a violent scuffle. Articles in the shop were thrown and scattered. Both of them fell down. Thereafter, it can be seen that both of them got up from the floor of verandah and at that moment, the appellant took MO1 scissors and inflicted injuries on the neck of the deceased. Already his property was under attack of the deceased. Too much speculation is not possible here. But from the evidence, it can be gathered that obviously, the appellant would have developed an apprehension in his mind that he would be attacked by the assailant who was much better placed in physical capacity than the appellant, which might cause death or grievous hurt to him.
31. It is true that a hyper-technical view cannot be taken here. But it is pertinent to note that the deceased was unarmed. The appellant could have brandished the weapon to the unarmed deceased to stop him from his wrong pursuit or even inflict any injury on him. In our view, the injury inflicted by the appellant is disproportionate to the threat which he really was facing at that point of time. The injury inflicted very much exceeded the right to private defence and it was too fatal, that it caused severe bleeding, leading to death.
32. However, considering the facts and circumstances of the case as a whole, we do not think an offence under Section 302 of I.P.C is made out. There is no intention or pre-meditation on the part of the appellant. The case at hand falls only under Exception 2 to S.300 of I.P.C and hence the accused can be punished only for having committed culpable homicide not amounting to murder falling under Section 304 Part II of I.P.C
33. In the result, the appeal is partly allowed. The conviction and sentence passed by the trial Court under Section 302 of I.P.C is hereby set aside. The appellant is convicted under S.304 Part II of I.P.C and sentenced to suffer rigorous imprisonment for seven years. The period of detention, if any, undergone by the appellant in connection with this case, shall be given set off under Section 428 of Cr.P.C
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