Jayachandran @ Kannan v. State of Kerala

# **WEDNESDAY, THE 4TH DAY OF APRIL 2018 / 14TH CHAITHRA, 1940** **AGAINST THE ORDER/JUDGMENT IN SC 463/2008 of I ADDL.SESSIONS COURT, KOLLAM DATED 01-10-2010** **CP 88/2007 of J.C.C.M.-II, KOLLAM** ## **APPELLANT(S)/IST ACCUSED** **JAYACHANDRAN @ KANNAN, S/O.SREEDHANANDAN PILLAI @ CHANDRAN,, BHAJANAMADATHIL VEEDU, RAMANKULANGARA,, KUREEPUZHA CHERRY, SAKTHIKULANGARA VILLAGE.** **BY ADVS.SRI.BECHU KURIAN THOMAS SRI.ENOCH DAVID SIMON JOEL SMT.INDU SUSAN JACOB SMT.NISHA JOHN SRI.PAUL JACOB (P) SRI.ROSHEN.D.ALEXANDER** ## **RESPONDENT(S)/COMPLAINANT:** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/1/2018 THE COURT ON 4/4/2018 DELIVERED THE FOLLOWING:** ## **A.M. SHAFFIQUE & P.SOMARAJAN, JJ.** ========================== Crl.Appeal No.2158 of 2010 ==================== Dated this, the 4[th] day of April, 2018 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the first accused in SC No.463/2008 challenging judgment dated 1/10/2010. The first accused was found guilty and sentenced to undergo imprisonment for offences u/s 324 and 302 of IPC. 2. In an earlier round, appeal was decided as per judgment dated 10/4/2017, confirming the conviction and sentence of the accused. An application came to be filed as Crl.M.A. No.2599/2017 to recall the judgment dated 10/4/2017 on the ground that the contention that the offence came to be committed by exercising the right of private defence of property, though specifically raised and argued was not considered. In fact, this Court had considered the claim of private defence raised by the accused as if it were a claim of private defence of body and no mention has been made in the judgment about the claim u/s 97 IPC. The Division Bench which Crl.Appeal No.2158/10 -:2:- ## decided the case, therefore recalled the judgment. Paragraph 15 and operative portion of the order reads as under:- _“15. After hearing the learned Senior Counsel for the petitioner and the learned Public Prosecutor, we are of the view that the question raised by the petitioner/appellant regarding sustainability of his plea of private defence of property was not considered by this Court. So, the appellant has made out a legal ground to recall the appellate judgment. Therefore, in the interest of justice, we deem it fit to recall the judgment passed by this Court in the above appeal._ _In the result, the petition is allowed. Judgment in the captioned criminal appeal is hereby recalled. Registry shall place the matter before appropriate Bench after taking orders from the Hon'ble Acting Chief Justice for hearing and disposal of the case.”_ 3. To put the facts in brief, the allegation is that the accused along with certain persons formed into an unlawful assembly armed with deadly weapons like knife, pipes and jack lever committed rioting and in prosecution of their common object inflicted injuries on PW2 and the deceased Prasannan. The incident happened on 16/5/2004 at 10.20 p.m. Prasannan having sustained fatal injuries died within an hour. PW2 sustained stab injuries on his buttock. The trial court acquitted accused 2 to 7 on Crl.Appeal No.2158/10 -:3:- the finding that prosecution failed to establish the case. The appellant/1[st] accused alone had been convicted for having committed offence u/s 302 and 324 IPC. 4. Before the trial court, prosecution examined PWs 1 to 16 and marked Exts.P1 to P29. MOs 1 to 7 were the material objects which were identified and proved. The defence examined a witness as DW1 and marked Exts.D1 to D7. Exts.C1 to C3(a) were marked as court exhibits. 5. A brief description of the statement of witnesses and the materials relied upon have to be considered before considering the actual issue involved in the matter. 6. PW1 is the brother of the deceased who gave the First Information Statement at 11.15 hours on 16/5/2004. He deposed that he got information that Prasannan was beaten up, from PW4 Abhilash. He rushed to the place and by the time he reached there, Prasannan was removed to the hospital. When he went to the hospital, he was informed that his brother Prasannan had died. 7. PW2 is an injured eye witness. He is a friend of the deceased. He deposed that he along with PW2, 3 and 4 had gone Crl.Appeal No.2158/10 -:4:- to the teashop of Prasannan. They together came to the bus stop at High School Junction to see off PW's 3 and 4. Though several buses plied through the said road, none of them stopped. Thereafter, they saw a bus by name 'Kuttappan' coming through the said road with the destination board 'Chavara'. When the bus slowed down, PW4 jumped into the said bus. Bus stopped after a short distance. Thereafter, PW2 along with PW3 and Prasannan went towards the bus. The cleaner in the bus informed that the bus is not going upto Chavara and it will stop service at Ramankulangara. Prasannan questioned the aforesaid act of the bus limiting the trip at Ramankulangara. Suddenly a scuffle ensued between the cleaner of the bus and the deceased. Though PWs 2 and 3 attempted to interfere in the matter, but they continued with the scuffle. In the meantime, a stone was thrown towards the bus which shattered the rear glass. Some one inside the bus suddenly shouted that the persons who had damaged the bus should be beaten. Five persons jumped out of the bus armed with iron rod and other utensils. Seeing this, Prasannan ran away. He was proceeding towards PW2. A person who was wearing an yellow shirt had a knife with him and he Crl.Appeal No.2158/10 -:5:- stabbed PW2 on his back. Thereafter, they attacked Prasannan. PW2 ran towards a petrol bunk and stayed there. He was terribly afraid. After some time, when he came back to the place of occurrence, Prasannan was taken to the hospital where he died. PW2 identified the appellant as the person who had stabbed him and Prasannan, with the knife, MO1. 8. PW3 Sreekumar was also present at the time of the incident. He also supported the version of PW2 and stated that when the bus by name Kuttappan came, PW4 jumped into the bus while it slowed down. The cleaner of the bus informed them that the bus is going upto Ramankulangara which was questioned by deceased Prasannan and there was a scuffle between the cleaner and Prasannan. He tried to interfere and separate them from fighting. During the scuffle, one of them fell down and he heard the sound of breaking glass from the back of bus. Somebody shouted that the attackers should be beaten up and three persons jumped out from the backside of bus. On seeing them, deceased Prasannan and PW2 ran towards east. A person in yellow shirt stabbed PW2 on his buttock. Thereafter they started attacking Prasannan. The person in yellow shirt stabbed Prasannan who fell Crl.Appeal No.2158/10 -:6:- down on receiving the injury. He was repeatedly stabbed. One of the assailants attacked PW4 with his bare hand. The assailants proceeded in the very same bus. PW3 sent PW4 to the shop of the deceased for giving information. He tried to arrange a vehicle. None was ready to help. Ultimately, another autorickshaw came and after disembarking the passengers, Prasannan was taken to the District Hospital. In the casualty, the Doctor declared him dead. He also identified the appellant as the person who stabbed Prasannan and PW2. 9. PW4 is another eye witness to the incident. He also deposed in accordance with the manner in which PW2 and PW3 gave evidence. Even according to him, the person who was wearing an yellow shirt stabbed PW2 and the deceased. PW4 informed the incident to PW1 and thereafter they proceeded to District Hospital. 10. PW5 Shibu is an autorickshaw driver. He is also an eye witness. He used to park his vehicle in the High School Junction. He deposed that he has seen the incident. He was sitting in his autorickshaw which is parked at the junction. He knew Prasannan who came to the junction along with four other persons. They Crl.Appeal No.2158/10 -:7:- were signalling to stop buses which came through that road. None of the buses stopped. Thereafter he saw bus 'Kuttappan' coming and one of them jumped into the bus. After some time, he saw one of them running away by covering his back side with hands and thereafter 4-5 persons attacked deceased Prasannan. One of them stabbed Prasannan. On seeing the incident, he went away from the scene. He also identified the appellant and the shirt MO6 which he was wearing at the time of incident. 11. PW6 is an attestor to Ext.P2 mahazar by which MO1 was recovered. PW7 is a witness to Ext.P3 scene mahazar. PW8 Dr.Margie Xavier had issued Ext.P4 discharge certificate to PW2. Discharge certificate would show that PW2 sustained an injury on perineum and had a contusion on his back. PW8 also proved Ext.P5 signed by Dr.Rajesh D. Rajan who had issued Ext.P5 wound certificate. Dr.Rajesh D.Rajan was not present for his examination. 12. PW9, Dr.P.Rema had conducted autopsy of the deceased Prasannan. Ext.P6 is the post mortem certificate. There were 20 ante-mortem injuries and injury No.1 which is extracted hereunder is the cause of death according to PW9. _"1. Incised penetrating wound 3x1cm, horizontal, on_ Crl.Appeal No.2158/10 -:8:- _the right side of front of chest, the inner sharply cut end being 15 cm below the top of breast bone in the middle. Its outer end was blunt. The chest cavity was seen penetrated by cutting through sixth right costal cartilage, pierced the pericardium, cleanly cut the right border and front aspect of right ventricle of heart, close to atrioventicular junction with transection posterior interventicular branch of coronary artery (3.5x0.8x1.5 cm), punctured the front wall of root of right atrium (1x0.5x0.3 cm) and pierced the whole thickness of pericardium on the back aspect. Heamatoma 12x11x1cm was present over the surface of heart. The wound was directed backwards and upwards for a total minimum depth of 4.7 cm. Pericardial cavity contained 350ml of fluid blood and 80gms of bloodclot. Right chest cavity contained 250gm of blood clot and 250cc of fluid blood. "_ 13. PW9 also deposed that all the incised wounds could be caused by MO1. In fact, a test identification parade was conducted and PW11 had witnessed the same while working in the capacity as Judicial First Class Magistrate. Ext.P9 is the report. The report indicates that suspects and non-suspects were mixed up and each of the witnesses were asked to identify them after shuffling their position thrice. On all the three occasions, the witnesses identified the accused/appellant. Crl.Appeal No.2158/10 -:9:- 14. PW12 is the Sub Inspector of Police who recorded Ext.P1 FIS. The site plan was prepared by PW14 the Village Officer. PW16 conducted the investigation and the final report was submitted by PW15. 15. PW16 deposed that, on questioning the accused, he stated that MO1 knife was thrown in a bushy area near Thoppil Kadavu and based on the disclosure statement, MO1 was recovered as per Ext.P2 mahazar. Relevant portion of the disclosure statement is marked as Ext.P2(a). The appellant was arrested on 18/5/2004 and MO1 knife was recovered on the basis of his disclosure statement on 19/5/2004. 16. The material object MO1 knife was forwarded to the Director of Forensic Science Lab (FSL) Thiruvananthapuram and Ext.P29 is the report. The shirt MO3 which the appellant was wearing at the time of the crime was also recovered and sent to FSL. In the report, it is stated that MO1 knife and MO3 shirt contained human blood. The defence tried to contend that all the witnesses were partisan witnesses and were friends of the deceased and they have falsely implicated the accused into the crime. Crl.Appeal No.2158/10 -:10:- 17. As already observed, we are concerned only with the conviction of the appellant. All the eye witnesses were unanimous in stating that the accused was wearing an yellow shirt and he had MO1 knife with him at the relevant time. He is the one who had inflicted a stab injury on the back of PW2 and had stabbed Prasannan. Though it was contended that it was not possible to identify the accused, the said contention cannot be accepted for various reasons. One is that all the eye witnesses had seen the accused very closely and he was wearing an yellow shirt. The injured witness PW2, had specifically seen him. Secondly, a test identification parade was conducted and all the eye witnesses identified the accused. That apart, MO1 knife was recovered based on the disclosure statement of the accused. It was blood stained and contained human blood. MO3 shirt (the yellow shirt), which the accused was wearing at the relevant time, also contained human blood. When all the eye witnesses were unanimous and the scientific evidence, recovery of MO1 knife and MO3 shirt clearly proves the involvement of the accused, there is no reason to doubt his complicity in commission of the crime. The fatal injury on the body of Prasannan was injury No.1, Crl.Appeal No.2158/10 -:11:- which was the cause of death. Therefore, we do not think that the Court below had committed any error in arriving at a finding that the accused had committed the crime. 18. The next question to be considered is whether the accused can claim the benefit of S.97 IPC. The argument by the learned counsel for appellant is that somebody threw a stone on the rear glass of the bus and it got damaged. This incident resulted in the appellant exercising right of private defence as far as the property is concerned though he is not the owner of the property. He also placed reliance upon a judgment of the Apex Court in _**Mahabir Choudhary v. State of Bihar**_ [(1996) 5 SCC 107]. Paragraphs 9 to 11 are relevant which reads as under:- _**“9.** Section 97 IPC recognises the right of a person not only to defend his own or another’s body but to defend his own or another’s property even against an attempt to inflict any offensive act as against the property. It is now well settled that the rule of retreat which common law courts espoused is not relevant under the Indian Penal Code. If a man’s property is in imminent danger of being impaired or attacked he has the right to resort to such measures as would be reasonably necessary to thwart the attempt to protect his property. In Jai Dev v. State of Punjab this Court has observed that in India there is no rule which expects a man to run away when confronted with a situation where he can exercise his right of_ Crl.Appeal No.2158/10 -:12:- ## _private defence._ _**10.** No doubt Section 103 IPC, which deals with right of private defence as against an act which might be mischief or theft or criminal trespass, conditions that there should be reasonable apprehension that death or grievous hurt would otherwise be the consequence. But that provision deals with the farthest extent of the right of private defence as against the above three categories of wrongs against the property. But a man pitted against such wrongs or even against attempts thereof need not wait for exercising right of private defence until the apprehension of death or grievous hurt is burgeoned in his mind. The Penal Code envisages two measures of right of private defence. One is the first degree which shall not reach up to causing of death of the wrongdoer. The other is the full measure which may go up to causing death. Both measures are, however, subjected to the restrictions enumerated in Section 99. Section 104 IPC contains the bridle that right of private defence shall not cross the limit of first degree as against acts which would remain as theft, mischief or criminal trespass. But Section 103 recognises extension of the said right up to the full measure, even as against the aforesaid acts but only if such acts or their attempts are capable of inculcating reasonable apprehension in the mind that death or grievous hurt would be the consequence if the right is not exercised in such full measure._ _**11.** The emerging position is, you have the first degree of right of private defence even if the wrong committed or attempted to be committed against you is theft or mischief or criminal trespass simpliciter. This right of private defence cannot be used to kill the wrongdoer unless you have_ Crl.Appeal No.2158/10 -:13:- _reasonable cause to fear that otherwise death or grievous hurt might ensue in which case you have the full measure of right of private defence.”_ ## 19. Yet another judgment relied upon is _**Suresh Singhal v. State (Delhi Administration)**_ [(2017) 2 SCC 737]. Paragraph ## 22 is relevant which reads as under:- _**“22.** In Darshan Singh v. State of Punjab, this Court laid down the following principles which emerged upon the careful consideration and scrutiny of a number of judgments as follows: (SCC p. 351, para 58)_ _“58. The following principles emerge on scrutiny of the following judgments:_ _(i) Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise 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_ Crl.Appeal No.2158/10 ## -:14:- _reasonable apprehension arises and it is coterminous 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.”_ 20. On the other hand, learned Public Prosecutor contended that while considering a claim for right of private defence, the entire incident must be examined with care and viewed in its proper setting. He relied upon the judgment in _**Naveen Chandra v. State of Uttaranchal**_ [(2009) 16 SCC 449]. 21. As has been argued, this is a case where the accused claims right of private defence not of his body but that of property Crl.Appeal No.2158/10 ## -:15:- which comes under S.97, which reads as follows:- _“97. Right of private defence of the body and of property.—Every person has a right, subject to the restrictions contained in section 99, to defend—_ _(First) — His own body, and the body of any other person, against any offence affecting the human body; (Secondly) —The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.”_ 22. As already stated, the defence is that there was a threat that the bus will be attacked and damaged. In fact, a stone was thrown and the rear glass of the bus had been broken. Even according to prosecution witnesses, on seeing that the rear glass broke, somebody inside the bus exhorted that those who were attacking the bus should be beaten up. Suddenly all of them got down and thereafter the incident of stabbing occurred. S.103 further provides that the right of private defence of property extends to the voluntary causing of death or of any other harm to the wrong- doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, Crl.Appeal No.2158/10 -:16:- be an offence of any of the descriptions mentioned therein which includes robbery, house breaking by night mischief by fire committed on any building, tent or vessel which is used for human dwelling, theft, mischief, house trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence. 23. The question would be whether throwing a stone so as to damage or break the glass of the bus would amount to a situation where right of private defence of property could be exercised. 24. In _**Mahabir Choudhary**_ (supra), it was held that S.97 IPC recognises the right of a person not only to defend his own or another's body, but to defend his own or another's property even against an attempt to inflict any offensive act as against the property. If a man's property is in imminent danger of being impaired or attacked, he has the right to resort to such measures as would be reasonably necessary to thwart the attempt to protect his property. While considering the scope of 103 IPC with reference to mischief or theft or criminal trespass it was further held that when a man is pitted against such wrongs mentioned therein and even against attempts thereof, he need not wait for Crl.Appeal No.2158/10 -:17:- exercising private defence until the apprehension is exhausted. S.103 recognises extension of the said right up to the full measure even as against the acts, but only if such acts or attempts are capable of inculcating reasonable apprehension in the mind that death or grievous hurt would be the consequence. It was therefore held that one has the first degree of right of private defence, even if the wrong committed or the attempt to commit against him is theft or mischief or criminal trespass. But the right of private defence cannot be used to kill the wrong doer unless he has reasonable cause to fear that otherwise death or grievous hurt might ensue in which case he has the full measure of right of private defence. 25. In _**Suresh Singhal**_ (supra), it was held that if a person reasonably apprehended a danger to his life, it is enough to put the right of self defence into operation and it is not necessary that there is an actual commission of the offence. 26. In the instant case, we do not think that the appellant had a threat to his life under any circumstances. The witnesses had clearly spoken to the fact that there was a scuffle between the appellant and the deceased. It was outside the bus. They fell Crl.Appeal No.2158/10 -:18:- down. Deceased ran. PW2 also ran. The appellant chased them and inflicted an injury on the buttock of PW2 and thereafter chased deceased and he was stabbed. He did not end there. Appellant along with others inflicted several injuries on the person who was lying down. PW2 says he ran away from the scene. PW3 also left the scene. PW4 informed them that he was a traveller in the bus. Other than the fact that a stone was thrown and the rear glass of the bus broke, there is no material to indicate as to who had committed the said act. At any rate, it was not the deceased as even according to the witnesses, the glass broke when the scuffle between Prasannan and the accused was going on. Therefore, this is not a case in which it could be said that the accused is entitled to the benefit of S.97. He had no apprehension regarding any danger to his life. For protecting the bus, there was no reason to chase PW2 and Prasannan and inflict injuries on them especially when they ran away from the scene. To protect the bus, it was enough to chase the assailants and there was no necessity to inflict injury running behind them. Therefore, we do not think that accused is entitled to get protection u/s 97 on the ground that the act was committed in the process of protecting Crl.Appeal No.2158/10 -:19:- the property. In the result, appeal is dismissed and we confirm the conviction and sentence ordered by the court below. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- **P.SOMARAJAN, JUDGE** Rp //True Copy// PS to Judge