Jose v. State (Criminal Appeal No. 2365 of 2006)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943 CRL.A NO. 2365 OF 2006** **AGAINST THE JUDGMENT IN S.C.NO.147/2006 OF II ADDITIONAL SESSIONS COURT, ERNAKULAM** ## **APPELLANT/ACCUSED:** **JOSE, AGED 52 S/O.OUSEPH JNEZHUNGAN VEEDU, CHELAMATTOM KARA, CHELAMATTOM VILLAGE.** **BY ADVS.** **SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM** ## **RESPONDENT/COMPLAINANT:** - **1 SUB INSPECTOR OF POLICE PERUMBAVOOR POLICE STATION.** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,** **HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI.M.S.BREEZ (SR.PUBLIC PROSECUTOR)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.2365/2006 2 ## _**JUDGMENT**_ _Dated this the 7[th] day of July 2021_ The challenge in this appeal is to the judgment dated 18.11.2006 passed by the learned II Additional Sessions Judge, Ernakulam in Sessions Case No.147 of 2006. By the impugned judgment, the appellant/accused was convicted of the offence under Section 323 IPC and sentenced to undergo simple imprisonment for a period of three months and to pay fine of Rs.1,000/-. 2. The genesis of this case dates back to 28[th] of August, 2005. The appellant/accused had an altercation with Yamuna (PW2), his neighbour, who was taking her goat for grazing in the property of one Murali. He caught hold on her tuft. By the time, the victim (PW1), who was on the scene, intervened and attempted to prevent the accused from causing harm to PW2. Enraged by this interference by PW1, the appellant caught hold of his penis and scrotum and twisted it causing serious injuries to him. PW1 was taken to Sanjoe Hospital, Perumbavoor by PW3 and another. 3. PW1 launched FIS before the Perumbavoor police in which Crime No.525 of 2005 was registered. The prosecution alleged that the accused committed the above acts with the knowledge that he was likely by such act to cause death of the victim Crl.A.No.2365/2006 3 and thereby committed the offence punishable under Section 308 IPC. 4. After completion of investigation, charge sheet was laid before the Judicial Magistrate of First Class, Perumbavoor alleging offence punishable under Section 308 IPC. The case was committed to the Court of Sessions, Ernakulam from where it was made over to the trial court. 5. The accused appeared before the trial court. Charge was framed against him for the offence punishable under Section 308 IPC. He pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 6 and Exhibits P1 to P4. 7. After closure of the evidence on behalf of the prosecution, the accused was questioned under Section 313 Cr.P.C. He pleaded innocence. The matter was heard under Section 232 Cr.P.C. The trial court found that there was evidence against the accused and hence he was called upon to adduce evidence, if any, he may have in support thereof. After hearing the arguments addressed from both sides, the accused was found guilty of the offence punishable under Section 308 IPC and he was sentenced to undergo Crl.A.No.2365/2006 4 simple imprisonment for a term of three months and to pay a fine of Rs.1,000/-. 8. Heard Sri.V.Rajendran, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondents. 9. The following points arise for consideration: - (i) Whether the prosecution succeeded in establishing the ingredients of the offence punishable under Section 323 IPC against the accused. - (ii) Whether the sentence imposed against the accused requires modification. 10. PW1, the victim has given evidence that on 28.8.2005 around 2 P.M., while he was returning home, he found the accused holding the tuft of PW2 and having quarrel with her. PW1 intervened in the matter as he wanted to prevent a cruelty being committed against a lady. The accused did not appreciate the same. He questioned the authority of PW1 to interfere in the matter. Enraged by that the accused caught hold of his penis and scrotum and squeezed it. The accused also caught hold of his neck and tried to strangle him. On hearing the cry of PW1, the wife of the accused rushed to the scene and got the grip of the accused released. PW1 Crl.A.No.2365/2006 5 got up and attempted to escape from the scene. Not being satisfied with what he had done, the accused got a chopper from somewhere and chased PW1. PW1 was bleeding profusely from the wound on his scrotum and collapsed. He was taken to a private hospital at Perumbavoor by PW3 and another. 11. According to PW1, his scrotum was torn and his testicles came out and the wound was sutured by applying ten stitches. PW2, a neighbour of the accused, gave evidence in support of the prosecution. PW2 deposed that at the relevant time, she had brought her goat for grazing in the property of Murali and the accused questioned her right to enter the property and he assaulted her by catching hold of her tuft and also strangled her by her neck. According to PW2, on hearing her cry, PW1 rushed to the scene and intervened in the incident. PW1 caught hold of the accused from behind. By the time, the accused turned against PW1 and caught hold of him under his dhothy and with his other hand, he caught hold of his neck. 12. PW3 testified to the effect that on the relevant day, he saw PW1 coming from near the house of the accused crying aloud with bleeding injury. PW3 and another took him to Sanjoe Hospital at Perumbavoor and got him admitted there. Crl.A.No.2365/2006 6 13. PW4, the Chief Medical Officer at Sanjoe Hospital, gave evidence that the victim was examined at the hospital by the Resident Medical Officer and Exhibit P3 medical certificate was issued. PW4 testified that PW1 had sustained abrasions over the neck and chest and a fracture of the premolar tooth and a lacerated wound measuring 4x2x1 on the scrotum. PW4 stated that the injury could be caused by someone pulling the scrotum with force. 14. The case of the accused is that the incident occurred in the landed property belonging to him into which PW2 had trespassed disregarding his warning and when he questioned her, PW1 interfered. The credibility of the oral evidence of PWs 1 to 3 has not been successfully challenged by the defence. The oral evidence of PW1, the victim, and PWs 2 and 3 is corroborated by the oral evidence of PW4, Exhibit P1 FIS and Exhibit P3 accident register cum wound certificate. The resultant conclusion is that the prosecution could successfully establish the incident proper. 15. The learned counsel for the appellant/accused contended that even when it is proved that the prosecution could establish the incident proper, the accused was exercising his private defence as the victim was the aggressor. The contention of the accused is on the foundation that the victim entered into the property belonging to the Crl.A.No.2365/2006 7 accused for the purpose of interfering with the altercation that was taking place between the accused and PW2. Admittedly there was an altercation between PW1 and the accused which resulted from the incident when the victim made an attempt to save PW2 while she was assaulted by the accused. PW1 had only interfered in the altercation, so as to prevent the accused from causing any harm to PW2, the lady who was acquainted with him. The oral evidence of PW2 is to the effect that PW1 had caught hold of the accused in order to release his grip from her tuft and the accused immediately turned against PW1 and caught hold of him. 16. There is absolutely no injuries on the body of the accused. There is nothing to show that a tussle occurred between the accused and PW1 so that the accused would have exercised the right of private defence. 17. The law clearly spells out that right of private defence is available only when there is reasonable apprehension of receiving the injury. The law makes it clear that it is necessary that the extent of right of private defence is that the force used must bear a reasonable proportion of the injury to be averted, that is the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted. A person in fear of his life is Crl.A.No.2365/2006 8 not expected to modulate his defence step by step, but at the same time it should not be totally disproportionate. ## 18. In _**State of Madhya Pradesh v. Ramesh** [(2005) 9_ _SCC 705]_ , while dealing with plea of private defence, the Apex Court held thus : _"every person has a right to defend his own body and the body of another person against any offence, affecting the human body. The right of self defence commences as soon as reasonable apprehension arises and it is co-terminus with the duration of such apprehension. Again, it is defensive and not retributive right and can be exercised only in those cases where there is no time to have recourse to the protection of the public authorities."_ ## 19. In _**Darshan Singh v. State of Punjab and**_ _**another**_ [(2010) 2 SCC 333], the Apex Court in Paragraph 56 held thus : _“56. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered.”_ 20. The Apex Court has also summarised the principles on the right of private defence in paragraph 58, which include the following : _“58 (i) ................................_ _(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._ _............................................_ _(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.”_ Crl.A.No.2365/2006 9 21. In the instant case, the accused failed to establish that he was suddenly confronted with the necessity of averting an impending danger. He also failed to establish that he was 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. He also failed to justify infliction of injuries on the body of the victim. The accused has not received any injuries or had any imminent threat of his safety. The circumstances brought out in this case lead this Court to conclude that he was not exercising his right of private defence while inflicting injuries on the body of the accused. 22. The court below has rightly held that the accused voluntarily caused hurt to the victim and convicted the accused under Section 323 IPC. The conviction recorded by the court below requires no interference and the same is liable to be confirmed. 23. The learned counsel for the appellant/accused submitted that the sentence imposed is exorbitant. The trial court sentenced the accused to undergo simple imprisonment for a period of three months and a fine of Rs.1,000/-. 24. The incident occurred on 28.8.2005. The proceedings in Crl.A.No.2365/2006 10 this case continued for more than 15 years by now causing immense trauma, mental pain and anguish to the appellant/accused. 25. In _**Gurmugh Singh v. State of Haryana** [(2009) 15 SCC 635]_ , the Apex Court narrated the factors to be considered before awarding appropriate sentence to the accused in paragraph 24, which read thus : _24. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:_ _a) Motive or previous enmity;_ _b) Whether the incident had taken place on the spur of the moment;_ _c) The intention/knowledge of the accused while inflicting the blow or injury;_ _d) Whether the death ensued instantaneously or the victim died after several days;_ _e) The gravity, dimension and nature of injury;_ _f) The age and general health condition of the accused;_ _g) Whether the injury was caused without pre-meditation in a sudden fight;_ _h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;_ _i) The criminal background and adverse history of the accused; j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;_ _k) Number of other criminal cases pending against the accused;_ _l) Incident occurred within the family members or close relations;_ _m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?_ _These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused."_ Crl.A.No.2365/2006 11 26. In _**Singh K.P. v. State of N.C.T. of Delhi** (2015 KHC 4640)_ , the Apex Court, after taking into account the prolonged proceedings in the trial and appeal for nearly 17 years, reduced the sentence of two years' imprisonment imposed on the appellant therein to 7½ months being the period of imprisonment already undergone by him. The offence alleged in that case was punishable under Section 8 of the PC Act, 1988. 27. In _**Vinay and others v. State of Karnataka and another** (2015 KHC 4296)_ , the Apex Court reduced the sentence of imprisonment for a period of three months under Section 326 IPC read with Section 34 and 427 IPC to the period already undergone by the appellant therein. 28. In the instant case, the appellant had no motive to inflict injuries on the victim. The incident in fact had taken place on the spur of the moment. The injuries were caused without premeditation in a sudden fight. He has no criminal antecedents as per the materials available before the court. 29. Taking into account all these circumstances, this Court is of the view that the sentence imposed on the appellant requires interference. In the result, the appeal is partly allowed. Crl.A.No.2365/2006 12 - (i) The judgment convicting the accused under Section 323 IPC is confirmed. - (ii) The sentence imposed on the accused is modified as follows : - (a) The accused is sentenced to undergo imprisonment till the rising of the court. - (b) The accused is ordered to pay by way of compensation an amount of Rs.5,000/- (Rupees Five Thousand only) to the victim (PW1) under Section 357(3) Cr.P.C. and in default of payment of compensation, he shall undergo simple imprisonment for a term of one month. - (iii) The appellant shall appear before the trial court on or before 30.9.2021 to undergo the sentence and to pay compensation as ordered. Sd/- ## **K.BABU, JUDGE** csl