Balan @ Soda Balan, S. Koggu, Muhammed Kunhi, V. Balakrishnan @ Bal u, Ragavan (Addl. Appellant No.5) v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 20[TH] DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943 CRL.A NO. 678 OF 2006** **AGAINST THE JUDGMENT IN SC 199/2003 OF SESSIONS COURT** ## **KASARAGOD** ## **APPELLANTS/ACCUSED NOS.1 TO 4:** 1 BALAN @ SODA BALAN AGED 29 YEARS, S/O.RAMANKUTTY, NEAR GOPALAKRISHNA TALKIES, KUMBLA. 2 S.KOGGU AGED 23/99 S/O.SUNDARA, BATTAMPADY HOUSE, SANTHIPALLAM, KOIPADY VILLAGE. 3 MUHAMMED KUNHI, AGED 22/98, LAKSHAM VEEDU COLONY, KUNDANGARADUKKA,, KUMBLA, KOIPADY VILLAGE. *4 V.BALAKRISHNAN @ BALU, AGED 26/99, S/O.KUNHIRAMAN, KARIMARKKADU, NEAR PUTHIGE SCHOOL. (*DIED) ADDL.A5 V RAGHAVAN AGED 50 YEARS, S/O. KUNHIRAMAN, RESIDING AT KARIMMARKKADU, NEAR PUTHIGE SCHOOL, P.O.PUTHIGE, KUMBLA(VIA), KASARGOD DISTRICT. ( ADDL A5 IMPLEADED AS THE LEGAL HEIR OF THE DECEASED 4TH APPELLANT PER ORDER DATED 3/12/2021 IN CRL.M.A. 1/2021.) BY ADVS. SRI.M.SASINDRAN SRI.M.B.PRAJITH Crl.Appeal No.678/2006 -:2:- ## **RESPONDENT/COMPLAINANT:** STATE REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SMT. MAYA M.N. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2021, THE COURT ON 20.12.2021 DELIVERED THE FOLLOWING: Crl.Appeal No.678/2006 -:3:- J U D G M E N T Dated this the 20[th ] day of December, 2021 This appeal has been preferred by the accused Nos.1 to 4 in S.C.No.199/2003 on the files of the Sessions Court, Kasaragod against the judgment dated 10/3/2006 convicting and sentencing them under Section 304 I of IPC. 2. The prosecution case in short is that the accused who are active CPM workers, in furtherance of their common intention to murder Santhosh @ Vinu @ Vinod, an active BJP worker, assaulted him with MO1 to MO8 weapons and thereby caused his death at the room bearing No.VI/64 G (157) situated in northern side of Kumbla-Badiadka road at Koipady Village where the accused No.4 was residing on 9/10/1998 at 5.00 p.m. 3. PW1, a friend of the deceased, went to the police station immediately after the incident and gave Ext.P1 first information statement. PW10, the Sub Inspector of Police, Kumbla Police Station registered Ext.P1(a) FIR on the basis of Ext.P1 against the accused under Section 302 read with Section 34 of the IPC. Late Mr.Balasubramanian, the Circle Inspector, Crl.Appeal No.678/2006 -:4:- Kasaragod who was in charge of Circle Inspector of Kumbla took up the investigation. He conducted initial part of the investigation. PW12 took up the investigation from late Balasubramanian on 28/10/1998. He arrested the accused No.2. PW13, the Circle Inspector of Police, Kumbla took up the investigation on 5/12/1998. He questioned the witnesses, completed the investigation and filed charge sheet before the Magistrate. The learned Magistrate after complying the statutory formalities committed the case to stand trial at the Court of Sessions. 4. On receipt of summons, all the accused appeared at the court below. After hearing both sides, the court below framed charge against the accused under Section 304 read with Section 34 of IPC. The charge was read over and explained to the accused who pleaded not guilty. On the side of the prosecution, PW1 to PW13 were examined and Exts.P1 to P19 were marked. MO1 to MO42 were identified. On the side of the defence, DW1 and DW2 were examined and Exts.D1 to D6 were marked. 5. After considering the evidence on record, the court below found all the accused guilty under Section 304 I of IPC. Crl.Appeal No.678/2006 -:5:- The court below sentenced the accused to undergo rigorous imprisonment for 7 years each and to pay a fine of `5,000/- each, in default to suffer rigorous imprisonment for one year each. Aggrieved by the said conviction and sentence, all the accused preferred this appeal. 6. During the pendency of this appeal, the accused No.4 died. His legal heir was impleaded in the appeal as additional appellant No.5. 7. I have heard Sri.Satheesan, the learned counsel for the appellants and Smt. Maya M.N., the learned Public Prosecutor. 8. The learned counsel appearing for the appellants assailed the finding as to the guilt in the impugned judgment mainly on the following grounds. (i) PWs 2 and 3 whose evidence were heavily relied on by the Court below are highly interested witnesses (ii) Independent witnesses cited as CWs6 and 7 were not examined. (iii) Medical evidence is insufficient to prove that the injury sustained by the deceased could be caused with MO3. (iv) The prosecution failed to explain the injuries found on the body of the accused. (v) The accused is entitled to the protection of private defence. Crl.Appeal No.678/2006 -:6:- 9. Admittedly the accused were active CPM workers and the deceased, PWs2 and 3 were active BJP workers and they were known to each other. The incident took place at the room of the accused No.4. The defence admits the presence of the accused at the room of accused No.4 where the incident took place at the time of the incident. It is also not in dispute, rather it has been amply proved, that the deceased died as a result of the injuries sustained by him in the incident at the room of the accused No.4. The evidence of PW6, the doctor, who conducted autopsy on the body of the deceased, along with Ext.P6 post-mortem certificate would show that the deceased died as a result of hemorrhage and shock due to the injury to left axillary artery and left lung. PW6 deposed that the injury Nos.19 and 23 in Ext.P6 are individually sufficient to cause death in the ordinary course of nature and all the incised wounds noted therein are collectively sufficient to cause death in the ordinary course. 10. The prosecution relied on the evidence of PWs1 to 4, 6 and 8 to prove the incident and to fix the culpability on the accused. PW1 is the person who gave Ext.P1 FIS. Ext.P1 was marked through him. He deposed that he could not see the Crl.Appeal No.678/2006 -:7:- incident. However, he stated that while the occurrence was going on inside the room, the police persons came there and persons who were standing outside the room ran away from the spot. PW2 is an ocular witness. He deposed that on 9/10/1998 at about 4.30 p.m., one Mr.Umesh, a CPM worker, beat his friend Mr.Ullas in his presence. He thought of informing the said incident to his fellow party workers and friends such as PW3, the deceased and Mr.Ramakrishnan who were then seeing a movie in the theatre at Kumbla. He along with Mr.Ullas went to the cinema theatre and after the show, told PW3, the deceased and Mr.Ramakrishnan as to the assault on Mr.Ullas by Mr.Umesh. Then they decided to ask about the said incident to Mr.Umesh. Hoping that usually in the evening time Mr.Umesh would be in the room of the accused No.4 attached to the building of the Co-operative Hospital at Kumbla, all of them proceeded to the room of the accused No.4. The deceased asked the accused who were sitting inside the room as to the assault on Mr.Ullas. Then there were heated exchange of words between them and the accused Nos. 1 to 3 came out of the room, caught hold of the deceased who was standing front and the accused No.4 came out of the room armed with a sword and Crl.Appeal No.678/2006 -:8:- inflicted cut injury on the shoulder of the deceased. Then the accused forcibly took the injured deceased to the room. As the accused were armed with weapons, they did not enter into the room. He saw the accused No.2 cutting the deceased with another sword at the room and the accused No.1 stabbing the deceased with a knife and the accused No.3 aiming to beat the deceased with a stick. They made an attempt to rescue the deceased. At that time, the accused No.4 rolled down the shutter of the room. When they made attempt to roll up the shutter, one of the accused swayed with a sword through the space available beneath the shutter. At that time, the police personnel came there and he and others standing outside the room ran away. He identified MO1 as the sword used by the accused No.4 to inflict injury on the deceased and MO2 as the sword used by the accused No.2 to inflict injury on the deceased. 11. PW3 is the second ocular witness. He deposed that on 9/10/1998, he along with the deceased and Mr.Babu went to theatre at Kumbla to see the movie and when they came out of the theatre after seeing the movie, PW2 and Mr.Ullas approached and told them as to the assault on Mr.Ullas by one Mr.Umesh, a Crl.Appeal No.678/2006 -:9:- CPM worker. Then they decided to ask about the said incident to Mr.Umesh. They proceeded to the room of accused No.4 where usually Mr.Umesh was found in the evening and on the way, Mr.Ullas went to his house. When they reached near the room of the accused No.4, they saw all the accused inside the room. They asked the accused No.4 why Mr.Ullas was assaulted. Then there were heated exchange of words between them. At that time, the accused Nos.1 to 3 caught hold of the deceased and the accused No.4 came out of the room with a sword and gave a cut on the shoulder of the deceased. Then they made an attempt to rescue the deceased. At that time, the accused No.4 swayed the sword. Then, the accused took the deceased inside the room. Then he saw the accused No.2 cutting the deceased with a sword and the accused No.1 stabbing the deceased with a knife and the accused No.3 aiming a stick at the deceased. Again they made an attempt to enter into the room. At that time, shutter of the room was rolled down about ¾th of the room. Then one of the accused swayed sword through the space available beneath the shutter. At that time, police personnel came there and they all ran away. He has also identified MO1 and MO2. Crl.Appeal No.678/2006 -:10:- 12. PWs 2 and 3 were cross-examined in length by the learned counsel for the accused, but nothing tangible could be extracted from their evidence to create any shadow of doubt that they are not truthful witnesses. In fact, the defence has admitted the presence of PWs2 and 3 at the scene of occurrence. Both of them gave reliable, consistent and credible version of the crime and their evidence inspires confidence. They clearly deposed that all the accused attacked the deceased and inflicted injury on various parts of his body with MO1, MO2 and other weapons. The learned counsel for the appellants pointed out certain contradictions and omissions in their evidence. Marginal variations, slight contradictions and insignificant omissions are bound to occur when witnesses give evidence after a lapse of time. I could not find any vital contradictions or material omissions in their evidence affecting the fabric of the prosecution case. They clearly deposed the manner in which the accused assaulted and attacked the deceased, the nature of the weapon used by them and parts of the body of the deceased whereupon the injuries were inflicted by the accused. They have also identified MO1 and 2. Therefore, I hold that the evidence of PWs2 Crl.Appeal No.678/2006 -:11:- and 3 could be safely relied on to prove the incident and to fix the culpability on the accused. 13. The evidence of PWs2 and 3 gets corroboration from the evidence of PW4, PW8 as well as the medical and scientific evidence. PW4 did not fully support the prosecution. However, it has come out in her evidence that she reached the scene of occurrence at about 5.15 p.m, on the day of the incident and she saw about 25 assailants pelting stones at the shutter of the room of the accused No.4. She deposed that at that time she saw the accused No.4 and two others taking the injured out of the room. She also deposed in cross-examination that she saw two to three assailants running away from the scene with knife and stick. PW8 was the head constable attached to the Kumbla police station. He gave evidence that on 9/10/1998 at 5.30 p.m., on receiving a phone call, he along with two police personnels proceeded to the room of the accused No.4 and when they reached there, they saw about 10 assailants pelting stones at the room. He further deposed that the shutter of the room was found to be rolled down about half portion and when he went near to the room, he saw a person lying in a pool of blood and the accused inside the room. Crl.Appeal No.678/2006 -:12:- He further deposed that at his instance, the accused took the injured out of the room. There is nothing to disbelieve the above portion of the evidence of PWs4 and 8. The said evidence corroborates the version of PWs2 and 3. 14. PW6 is the doctor who conducted autopsy on the body of the deceased and issued Ext.P6 post-mortem certificate. PW6 on his examination found the injuries on the body of the deceased and recorded in the wound certificate. PW6 gave evidence that injury Nos.13, 19, 22, 23, 25, 26 and 27 mentioned in Ext.P6 are possible by cutting with a weapon like MO3. He also gave evidence that injury Nos.4, 5, 12, 15, 16, 17, 20, 21, 24, 28, 29 and 14 are possible by cutting with any of the weapons like MO1 to MO3. He also opined that injury Nos.1, 6, 8, 9, 10 and 18 are possible by beating with MOs4 to 6 sticks. Ext.P13 chemical analysis report show that all the lethal weapons seized from the place of occurrence were found to be stained with human blood. The said evidence coupled with the medical evidence discussed above suggest that those weapons were used by the assailants to inflict the injuries on the body of the deceased. Thus, the medical as well as scientific evidence also supports the prosecution case. Crl.Appeal No.678/2006 -:13:- The evidence of PW13 would show that he has recovered MOs 1 to 8 from the place of occurrence. 15. The learned counsel for the appellants vehemently argued that there are several circumstances pointing to the innocence of the accused. First of all, the learned counsel argued that the prosecution failed to examine the independent witnesses, CWs6 and 7, and instead they chose to examine PWs 2 and 3 who are the fellow party workers and close friends of the deceased. The question is not whether the prosecution examined so many numbers of witnesses. The question is whether the prosecution had succeeded to prove the case through the examined witnesses. I have already found that prosecution has succeeded in proving the incident through the evidence of PWs2, 3 as well as PWs4, 6 and 8. In _**Ambika Prasad and Another v. State (Delhi Administration)**_ [(2000) 2 SCC 646], the Apex Court has held that non examination of the independent witnesses cannot be ground for rejecting evidence of occurrence witnesses. The learned counsel, next, submitted that the evidence on record would show that the accused Nos.1, 3 and 4 sustained injuries in the same transaction and the prosecution Crl.Appeal No.678/2006 ## -:14:- failed to explain the said injuries and non explanation of the same is very important circumstance to cast doubt on the prosecution case, the benefit of which should go to the accused. The evidence of PW5, the doctor who examined the accused Nos.1, 3 and 4 and Exts.P3 to P5 wound certificates, would show that they had sustained injuries on that day. PW5 deposed that the injuries mentioned in Exts.P3 to P5 are simple in nature and those are possible by self infliction. PW5 also deposed that in an assault at a closed room by four persons armed with swords and knife, those injuries are possible. The Apex Court in _**Chandrappa and Others v. State of Karnataka**_ (AIR 2008 SC 2323) and in _**Ramdeo Kahar and Others v. State of Bihar**_ (AIR 2009 SC 1803) has held that non explanation of insignificant injury on the person of the accused would not dislodge the prosecution case. In _**Gurudev Singh v. State of Madhya Pradesh**_ [(2011) 5 SCC 721], the Apex Court took the view that when the injuries received by the accused were very simple in nature, whereas the injuries inflicted on the deceased were very serious in nature, and were inflicted on the vital parts of the body of the deceased, the accused cannot take a plea that the prosecution has to explain Crl.Appeal No.678/2006 -:15:- the minor injuries sustained by the accused. The facts of this case is also similar. The deceased sustained grievous injuries on vital parts of his body and he succumbed to those injuries whereas the accused only sustained minor injuries. In these circumstances, I am of the view that, the failure, if any, on the part of the prosecution to explain the injuries sustained by the accused, has no significance at all and it will not tell upon the prosecution case. 16. On careful reappreciation of the entire evidence on record, I am satisfied that the prosecution has successfully established that the accused had assaulted and inflicted injuries on the body of the deceased who later on succumbed to the injuries at the hospital. 17. The accused in the alternative took the plea of private defence. The learned counsel for the appellants vehemently argued that the evidence on record would clearly show that the incident took place at the room of the accused No.4 and that there was altercation between the accused and PWs2, 3 and the deceased and PWs2, 3 and the deceased assaulted the accused with weapon and under the apprehension of further assault, they in the process of protecting their life have made an assault even Crl.Appeal No.678/2006 -:16:- if the prosecution version is believed in toto. The learned counsel further submitted that the evidence on record establishes a free fight and the deceased and his men were aggressors. Per contra, the learned Public Prosecutor submitted that this is not a case where the plea of right of private defence can be pressed into service at all. 18. The right of self defence is a very valuable right u/s 96 of IPC. It provides that nothing is an offence which is done in the exercise of the right of private defence. The section does not define the expression “ _right of private defence_ ”. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the court must consider all the surrounding circumstances. Sections 100 to 106 of IPC define the extent of the right of private defence of body. If a person has a right of private defence of the body u/s 97, that right extends u/s 100 to Crl.Appeal No.678/2006 -:17:- causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of assault. Sections 102 and 105 of IPC deal with commencement and continuance of the right of private defence of the body and of property respectively. The right commences as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat to commit the offence, though the offences may not have been committed. The right lasts as long as reasonable apprehension of the danger to the body continues. 19. The Apex Court has consistently held that the right of private defence extends the killing of the actual potential assailants when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the sixth clause of Section 100 of IPC. Under Section 105 of the Indian Evidence Act, the burden of proof is on the accused, who sets up the plea of self defence and in the absence of proof, it is not possible for the court to presume the truth of plea of self defence. However, the accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in civil case that the preponderance of probabilities is Crl.Appeal No.678/2006 ## -:18:- in favour of his plea. It is for the accused to place necessary material on record either by himself by adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. 20. On reapprecition of evidence, I have no hesitation to come to the conclusion that there is nothing on record to probablise the case of the defence that the appellants did the act in the exercise of the right of private defence. It is true that it is the admitted case of the prosecution that it was the deceased, PWs2 and 3 who went to the room of accused No.4 and questioned about the incident of assault by one Mr.Umesh on Mr.Ullas. But, there is nothing on record at least to probablise that they were carrying the weapon and they assaulted the accused which caused reasonable apprehension of death or grievous hurt to them. There is also nothing on record to show that the accused was in imminent and reasonable danger of losing his life or limb so as to justify the exercise of right. It is submitted at the Bar that the counter case against PWs2 and 3 ended in acquittal. The evidence on record would further show that the deceased had sustained 29 injuries out of which 19 are incised wounds. All Crl.Appeal No.678/2006 -:19:- the accused were armed with lethal weapons. The evidence further shows that the shutter of the room was rolled down by the accused and the entry to the room was prevented by them by swaying the sword through the space available beneath the shutter. In that situation, to protect the life of the accused, such number of injuries need not be inflicted on the body of the deceased. For these reasons I hold that the accused is not entitled to the protection of private defence. 21. The next question is what is the offence that is committed by the accused. The Court below found that the act of the accused will fall within the mischief of Exception 2 of S.300 of IPC and hence they were convicted u/s 304 Part I of IPC. On appreciation of evidence, I am of the view that it is not Part I of S.304, but Part II of S.304 of IPC is actually attracted. 22. The circumstances do not warrant a conclusion that the accused intended to cause the death of the deceased or to cause such bodily injury as he knew is likely in the ordinary course to cause the death. PW6, the doctor who conducted autopsy, opined that the death was due to hemorrhage and shock due to the injury to left axillary artery and lung. According Crl.Appeal No.678/2006 -:20:- to him, injury Nos. 19 and 23 are individually sufficient to cause death in the ordinary course of nature. Under the clause thirdly of Section 300 of IPC, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, it is murder as defined u/s 300 of IPC. But the doctor clearly deposed that injury Nos.19 and 23 cannot be caused by MOs1 and 2. Only MOs1 and 2 were identified by PWs2 and 3. However, he deposed that the incise wound noted in Ext.P6 are collectively sufficient to cause death in the ordinary course. The evidence tendered by the prosecution would show that there was no previous animosity between the deceased and the accused. The incident was admittedly taken place when the deceased and PWs2 and 3 went to the room of the accused No.4 to question about the assault on one Mr.Ullas by Mr.Umesh. There is evidence of altercation between them. The entire evidence on record would show that the incident was taken place at the spur of the moment. All these circumstances persuade me to hold that there was no intention on the part of the accused to kill the deceased. However, it is clear that they had knowledge that such Crl.Appeal No.678/2006 -:21:- an assault and bodily injury is likely to cause death. In these circumstances, I am of the view that it is a case falling u/s 301 Part II of IPC. 23. The learned counsel for the appellants, lastly, submitted that the Court below convicted the accused without the aid of S.34 and there is no evidence to show that the accused No.3 had used any dangerous weapon and as such, he can only be convicted u/s 323 of IPC. It is true that there was omission on the part of the Court below to invoke S.34. But the evidence on record would clearly establish that the injuries were inflicted on the deceased by the accused in furtherance of their common intention. The evidence shows that the accused Nos.1 to 3 came out of the room and caught hold of the deceased who was standing front and the accused No.4 came out of the room with a sword and inflicted a cut injury on the shoulder of the deceased. When PWs2 and 3 made an attempt to rescue the deceased, all the accused forcibly took the deceased into the room and then the accused No.2 gave a cut to the deceased by using another sword and the accused No.1 stabbed the deceased with a knife and accused No.3 beat the deceased with a stick. It has also Crl.Appeal No.678/2006 -:22:- come out in evidence that when PWs2 and 3 again made an attempt to rescue the deceased, the accused No.4 rolled down the shutter of the room and when PWs2 and 3 made an attempt to roll on the shutter, one of the accused swayed with the sword through the space available beneath the shutter. All these circumstances clearly show that all the accused have shared common intention. Thus I have no hesitation to hold that the criminal acts done by the accused were in furtherance of their common intention. In the light of the above findings, the conviction and sentence passed by the court below u/s 304 Part I of IPC is set aside. Instead, the accused are found guilty for the offence punishable u/s 304 Part II of IPC and they are convicted for the said offence. Considering the entire facts and circumstances of the case and also considering the fact that the accused have been undergoing the ordeal of trial for the last more than 15 years, the accused Nos.1 to 3 are sentenced to undergo rigorous imprisonment for four years. The appeal is allowed in part as above. Sd/- **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp**