Kottaram Preman v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938 CRL.A.No. 395 of 2010 -------------------------IN SC 632/2008 of ADDITIONAL SESSIONS COURT, THALASSERY APPELLANT)/ACCUSED IN JAIL: ---------------------------- KOTTAROM PREMAN, S/O ANANDAN, AGED 41, PAZHAYAVEEDU, AMBILAD DESOM, NEEROLICHAL,, THALASSERY. BY ADVS. SRI.K.S.MADHUSOODANAN SRI.K.VISWAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SMT.K.M.RAMYA RESPONDENT(S)/COMPLAINANT & FORMAL PARTY.: ------------------------------------------------------------------------ 1. STATE OF KERALA TO BE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2. DY.S.P.CRIME BRANCH,KANNUR. BY SRI.P.S.SREEDHARAN PILLAI BY DIRECTOR GENERAL OF PROSECUTION SRI.ASAF ALI PUBLIC PROSECUTOR SRI. MOHAMMED AUSER THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-04-2016, ALONG WITH CRL.A .(V). 374 OF 2016, THE COURT ON 8.4.2016, DELIVERED THE FOLLOWING: ## **K.T. SANKARAN & RAJA VIJAYARAGHAVAN.V. JJ** - - - - - - - - - - - - - - - - - - - - Crl.A.395 of 2010 & Crl.A.(V).374 of 2016 - - - - - - - - - - - - - - - - Dated 8[th] April, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## _**Raja Vijayaraghavan.V.**_ - 1.Kottaram Preman, the appellant herein, was charged and tried for having committed the murder of one Santhosh in SC No.632/2008 of the Court of Sessions, Thalassery. As per judgment dated 24.2.2010, he was found guilty u/s 302 of the IPC and was sentenced to undergo imprisonment for life. - 2.Against the above finding of guilt, conviction and sentence, Crl.A.395 of 2010 was preferred by the appellant herein and as per judgment dated 9.4.2010, this Court had set aside the findings of the learned Sessions Judge and the appellant was found entitled to **Crl.A.395/2010** 2 be acquitted of all grounds. - 3.The acquittal was challenged by the mother of the deceased Santhosh before the Apex Court and as per judgment dated 29.9.2015, in Crl.Appeal No.2096 of 2010, the order of acquittal was set aside and the matter was remanded back for fresh disposal. It is in the aforesaid circumstances that the Appeal No.395 of 2010 comes up before us for hearing and disposal. - 4.Meanwhile, the mother of deceased Santhosh, preferred appeal under the proviso to Section 372 of the Code of Criminal Procedure. In view of the ratio laid down in **Satya Pal Singh v. State of M.P and others (2015 (10) SCALE 444),** application for leave and an application seeking condonation of delay was also filed. After hearing the rival submissions, the delay was condoned, the leave was granted, and the appeal was **Crl.A.395/2010** 3 admitted. Both the appeals were taken up together and are disposed of by a common judgment. 5.The factual scenario as described by the prosecution which is more or less admitted by the defence, but subject to the general exception pleaded, needs to be noted in brief. (a). The deceased Santhosh, his brother Suresh and a near relative were prosecuted by one Balan Nambiar, the elder brother of the father of Santhosh. In the aforesaid criminal proceeding, which was pending before the Magistrate Court, Koothuparamba, the appellant was cited as a witness and he deposed in favor of the prosecution. This infuriated Santhosh and he threatened the appellant. The appellant, in the said circumstances, submitted a complaint before the S.I of police on 4.2.2005 wherein the highhandedness of Santhosh was **Crl.A.395/2010** 4 highlighted and sought for intervention. Santhosh as well as the appellant were called to the police station and Santhosh was warned by the police. According to the prosecution, this led to hostility between the parties. (b). The appellant was working as a cleaner in the bus belonging to the Koothuparamba school. Deceased Santhosh was running a shop at the Thokkilangadi bazar. On 27.1.2015, at 5.15 p.m, in front of a tea shop at Thokkilangadi bazar, the appellant and Santhosh entered into an altercation which was dispersed at the instance of the local people. Immediately after that, Santhosh took a stone from the ground and threw the same at the appellant but the same missed him by a whisker. The prosecution case is that, immediately thereafter, the appellant, on account of prior animosity, inflicted a stab injury on the abdomen of deceased Santhosh, using MO1 weapon, kept in his possession, **Crl.A.395/2010** 5 causing grievous injury. The appellant thereafter took to his heels and the injured Santhosh was shifted to the Koothuparamba hospital in a jeep. He was later taken to the Government Hospital, Thalassery, where he was pronounced dead by the Medical Officer. (c). PW1 - Khader witnessed the incident and he proceeded to the police station and gave Ext.P1 F.I statement based on which Ext.P1(a) FIR was registered by PW13, the S.I of police. Thereafter, PW14, the C.I of police picked up the mantle and continued with the investigation. He conducted inquest and later prepared Ext.P3 scene mahazar. On 2.2.2005 at 12.30 p.m, the appellant was arrested and based on the disclosure statement given by him, MO1 knife was recovered. Later, investigation was taken over by PW16, the DYSP of police, CBCID, Kannur. Finally, PW15, the CBCID of police, Kannur, laid the charge sheet before the **Crl.A.395/2010** 6 ## jurisdictional Magistrate. 6.The Court, before which final report was laid took cognizance of the offences . Finding that the offences are exclusively triable by a Court of Sessions , the said Court had committed the case to the Court of Sessions , Thalasserry, under section 209 of the Cr.P.C. The said Court, on receipt of records, made over the case to the Additional Sessions Judge, Thalassery, for trial and disposal. The latter Court, on receipt of records and on appearance of accused, framed charge for the offence under Section 302 of the IPC. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution had examined as many as 16 witnesses as PW1 to PW16 and marked 19 documents as Exts.P1 to P19. On the side of the defence, Exts.D1 to D3 were marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. Apart **Crl.A.395/2010** 7 from denying the incriminating circumstances, he stated that the deceased was the aggressor and he was justified in exercising his right of private defence. He filed a detailed statement in which he described his version of the incident as follows : Appellant was working as a cleaner in a school bus which required him to report for duty in the morning and evening. During his spare time after school hours, he used to work as a cook. Santhosh, his brother Suresh, and one Govindan Nambiar were the accused in C.C.No.231 of 2002 on the files of the Judicial Magistrate of First Class, Koothuparamba. The said case originated when the deceased and his brother Suresh and another person had trespassed into the house of the de facto complainant, one Balan Nambiar. He was an eye witness to the incident and he received summons from the Court to give evidence. Santhosh did not **Crl.A.395/2010** 8 attend the Court on the day he tendered evidence. Later in the evening while the appellant was returning back home, Santhosh wrongfully restrained him and after raining abuses, threatened him with dire consequences. Left with no alternative, the appellant preferred a complaint on 6.1.2005 before the Koothuparamba police. Santhosh was summoned and he was warned but it was of no avail .On 27.1.2005 at 5.00 p.m while the appellant was coming back from the school, and when he reached the place of occurrence, deceased Santhosh threatened him. Santhosh assaulted him and the local people who were present there came to his rescue. Immediately after that, Santhosh took a granite stone from the side of the road and pelted the same at the appellant. He flicked his head to the side and thus escaped from sustaining grievous injury to his head. Immediately after that the appellant took out the knife he was carrying with him in connection with his **Crl.A.395/2010** 9 avocation and waved it at Santhosh which struck the deceased on his abdomen. Thereafter, the appellant left the scene. 7.The trial Court after discussing the entire evidence, came to the conclusion that two counter versions of the case having been presented, the prosecution version is more probable and nearer to the truth. The fact that deceased Santhosh and the accused were living in inimical terms, the fact that Santhosh was unarmed except for a short period, that the stone hurled by Santhosh did not hit the accused,the fact that the appellant was carrying a dagger in his hand and finally, the nature of the injury inflicted by the appellant weighed in the mind of the learned Sessions Judge to hold that the appellant was not justified in exercising his right of private defence. He was found guilty as aforesaid and was convicted. The accused assails his **Crl.A.395/2010** 10 conviction and sentence in this appeal. - 8.We have heard Sri.K.S.Madhusoodanan, the learned counsel appearing for the appellant, Sri T. Asaf Ali, the learned Director General of Prosecution and Sri. P.S. Sreedharan Pillai, who appeared for the victim. 9.The learned counsel appearing for the appellant contended that the court below has not analyzed the evidence in the proper perspective and had it done so, it could have been seen that the incident has not occurred as alleged by the prosecution. According to the learned counsel, the evidence let in by the prosecution and relied on by the learned Sessions Judge unquestionably revealed that the appellant was confronted with the necessity of averting an impending danger, not of self – creation, which caused reasonable apprehension in his mind as to the threat to his life. Being placed in such a **Crl.A.395/2010** 11 situation, he had no option but to take out his knife and to inflict a single stab, which cannot, in any manner, be said to be in excess of his right of private defence. The learned Counsel meticulously took us through the evidence of PW1 to PW3 and highlighted the various circumstances surrounding the hostility between the parties and contented that the Court below erred grossly in coming to the conclusion that the appellant is not entitled to the right of private defence. The learned counsel also pointed out that the learned Sessions Judge had imbibed the facts incorrectly and the evidence let in by the prosecution did not reveal that the stab injury inflicted had penetrated downwards to a depth of 7 cms. At any rate, according to the learned counsel, the acts said to have been committed by the accused would fall within the ambit of Exception 1 to Section 300 of the IPC and by no stretch of imagination, this act could be treated as one amounting to murder. The learned **Crl.A.395/2010** 12 counsel appearing for the appellant relied on **Dominic Varkey v. State (AIR 1973 SC 473)** , **Yogendra Morarji v. State of Gujaraj (AIR 1980 SC 660)** , **Darshan Singh v. State of Punjab and Another (2010 (2) SCC 333), Sridhar Bhuyan v. State of Orisssa (2004 (11) SCC 395) and Dilip Kumar Mondal v. State of West Bengal (2015 (3) SCC 433)** to advance his contentions. 10.The learned Director General of Prosecution, on the other hand, contented that an impartial and objective evaluation of the evidence, clearly revealed that the appellant, being unusually armed with a knife, without any fear or reprisal, and after the threat, if any, was removed, inflicted an injury which was sufficient in the ordinary course of nature to cause death and therefore, his act would clearly come within the ambit of S. 300 of the IPC. It was further submitted that the defence **Crl.A.395/2010** 13 raised by the appellant was fanciful and imaginary and based on surmises and conjectures and the facts and circumstances did not reveal that the appellant was justified in causing the death purportedly in exercise of his right of private defence. It was submitted that the learned Sessions Judge had entered the correct finding and there was absolutely no reason to take a different view. The learned DGP relied on the decisions reported in **Chako @ Aniyankunju v. State (AIR 2004 SC 2688)** , **Sekhar v. State (AIR 2002 SC 2667), Raza Pasha v. State of M.P (AIR 1983 SC 575), Radha v. State of Chathisghad (2008 (11) SCC 787)** , **Vishvas Aba Kurana v. State of Maharashtra (AIR 1978 SC 414)** , to bring home his point. - 11.The learned Counsel appearing for the mother of deceased Santhosh, supported the contentions of the learned DGP and further contented that the learned **Crl.A.395/2010** 14 Sessions Judge had erred in not imposing fine which was mandatory. 12.We were painstakingly taken through the evidence let in and different interpretations were advanced by the respective counsel to support their contentions. The unique aspect, insofar as this case is concerned, is that the prosecution as well as the defence relies on the evidence of PW1 to advance their version of the incident. The accused does not dispute the incident . On the other hand, he asserts that the fatal injury sustained by the deceased was a result of the stab injury inflicted by him, albeit, with a different weapon. According to him , the weapon he used to inflict the injury was much smaller than MO1. The said knife was kept by him in his possession in view of his part time job as a cook. 13.We shall now analyze the evidence let in to appreciate **Crl.A.395/2010** 15 the rival contentions. 14.The lynch pin of the prosecution case is the evidence of PW1 who was selling ground nuts in front of the Pranam hotel at Thokkilangadi. He testified that he was engaged in his business between 4.00 p.m and 8.00 p.m on 27.1.2005 near the place of occurrence. At this juncture, it has to be noticed that the place of occurrence is undisputed. According to the said witness, at about 5.00 p.m, while he was having tea sitting inside the Pranam hotel, he heard the sounds of a quarrel outside the hotel. He ventured out and saw the appellant and deceased Santhosh engaged in a scuffle, or if we were to borrow the words of PW1, a push and pull. Some persons intervened and managed to separate the appellant and the deceased. Immediately thereafter, the deceased took a granite stone which hardly fit the palms of his hand, and hurled it at the accused. The **Crl.A.395/2010** 16 stone missed the appellant. Immediately thereafter, the appellant took out a dagger kept in his pocket covered in a newspaper and stabbed deceased Santhosh on his abdomen. After inflicting the fatal injury, the accused fled from the scene of crime. It is the aforesaid witness who had rushed to the police station and gave Ext.P1 statement. He identified MO1 as the weapon used by the appellant for inflicting the stab injury. In cross examination, the witness admitted that the school where the accused was working was situated nearby. The shop room of the deceased was situated on the opposite side of the road about 20 metres away. He also seconded the version of the appellant that he was a part time cook and he used to frequent the Pranam hotel at about 5.00 p.m on all days and he used to go back to his house after taking tea from the hotel. He further testified that the altercation lasted for about 4 - 5 minutes. It was further deposed that after the initial **Crl.A.395/2010** 17 scuffle, the appellant and the deceased were standing within arms length. More pertinently, the witness deposed that the stabbing took place within a couple of seconds after the stone was hurled at the accused by the deceased. 15.PW2 is none other than the brother of the victim. He stated that on 27. 1. 05, at about 5 p.m, he came to the Thokkilangadi bazar where the deceased was conducting a stationery shop. According to him, he had occasion to witness the incident in which the appellant had inflicted a stab injury on the abdominal area of the deceased Santhosh. He does not speak about the first phase of the incident. He identified the appellant as the assailant and he further deposed that his brother clutched on to the area where the injury was inflicted and sat inside an autorikshaw. PW3 – James and CW6 went to his brother's rescue. He was prevented by someone **Crl.A.395/2010** 18 standing nearby from rendering assistance to his brother. PW2 further deposed that, on seeing the incident he felt uneasy and he sat on the shop verandah. He stated that the appellant had given evidence against them in the court case. In cross examination, he admitted that the police had questioned him in connection with the incident only on 31.1.2005. 16.PW3 - James is an autorickshaw driver and he deposed that on the date of occurrence, he was sitting in his autorickshaw parked near to the Thokkilangadi Junction. He also testified that he had occasion to witness the incident in which the deceased and accused engaged in a scuffle. He along with others separated them and according to him, immediately thereafter, the appellant stabbed the deceased on his abdomen with a knife. He further stated that the appellant fled from the scene and he, along with PW4, took the deceased to the **Crl.A.395/2010** 19 hospital in a jeep. The characteristic feature of the evidence of PW3 is that he does not mention about the fact that after the accused and the deceased were separated, the deceased took a stone and flung it at the accused. - 17.Recovery of MO1 dagger at the instance of the appellant is sought to be proved by the prosecution by examining PW7, a driver. He deposed before Court that he was an attestor to Ext.P4 seizure mahazar prepared by PW14 and that he had witnessed the accused leading PW14, the Investigating Officer, and taking out MO1 dagger. - 18.The prosecution has also brought on record Ext.P6 complaint preferred by the appellant before the Additional Sub Inspector of police, Koothuparamba, complaining about the persistent harassment by the **Crl.A.395/2010** 20 deceased Santhosh on account of the fact that the appellant had tendered evidence against him in a criminal proceeding pending before the Magistrate Court, Koothuparamba. PW9 is the Additional S.I of police who was examined to prove Ext.P6. Ext.P7 register was also marked through the said witness. Ext.P7 reveals that the appellant as well as Santhosh were called to the police station and the deceased Santhosh was warned by the police and was asked to refrain from committing similar acts in future. 19.It was PW12, the Civil Surgeon, General Hospital, Thalassery, who conducted postmortem over the dead body of deceased Santhosh. Ext.P12 is the postmortem report which reveals the following injury:- _“Obliquely placed incised wound 7 cm., long directed downwards and medially on the abdomen on right side 5 cm. Lateral to_ **Crl.A.395/2010** 21 _umbilicus upper end of wound at the level of umbilicus with loop of small intestine (70 cm. In length) lying outside. Intestine cut into two pieces at one point. Exposing motion like material.”_ 20.In cross examination PW12 deposed that the death was due to cumulative effect of injury to the small intestine and bleeding. It was further testified that injury to the small intestine as such is not fatal if immediate service of a surgeon was provided. According to PW12, the depth of injury could not be ascertained specifically as the injury went into the abdominal cavity. - 21.The learned Sessions Judge thwarted the contentions of the defence and concluded that the evidence of PW2 and PW3 does not suffer from any infirmities. It is to be noted that PW2 is the brother of deceased Santhosh and PW3 is the childhood friend of Santhosh. The main **Crl.A.395/2010** 22 grievance of the defence is that both PW2 and PW3 had not given a true picture of the incident before Court. Insofar as PW2 is concerned, he does not speak about the scuffle between the appellant and Santhosh which took place in front of Pranam hotel on the date of incident. He does not mention about the fact that his brother Santhosh had taken a stone from the ground and had flung it at the appellant. The learned counsel further contended that PW2 is also one of the accused in C.C.No.231 of 2002, in which case, the appellant had tendered evidence in favour of the prosecution. It is pointed out by the defence that his statement was recorded only on 31.1.2005 which reveals that he was not present at the scene of occurrence and his statement was recorded to give a coloured version of the incident. The learned counsel appearing for the defence also contended that the conduct of PW2 is unusual as he did not go to the rescue of his brother **Crl.A.395/2010** 23 though he was standing about 20 metres away from the scene of crime. Even after Santhosh got into an autorikshaw after the incident waiting to be taken to a hospital, PW2 did not render any assistance to his brother. According to the learned counsel, these are all tell tale circumstances to doubt the version of PW2 that he was a witness to the occurrence. 22.As regards the evidence of PW3, the learned counsel appearing for the appellant would submit that the said witness is a close friend of PW2 and has also admitted that he is acquainted with deceased Santhosh right from his childhood days. It was pointed out that late in the evening on the day on which Santhosh was murdered, the father's elder brother of Santhosh was brutally assaulted, resulting in his death later. PW3 was the 2[nd] accused in the said case which is pending before the Sessions Court, Thalassery, as S.C.No.442 of 2009. **Crl.A.395/2010** 24 According to the learned counsel, PW3 is a witness who springs from a source which is tainted and his evidence before Court is to be eschewed from consideration. It was pointed out that PW3 has even suppressed the fact that the deceased had flung a stone at the appellant after they were separated which was the root cause of the incident. Failure of PW3 to present the true version of the incident before Court assumes great significance in the facts of the instant case as the question whether the appellant was justified in exercise of his right of private defence rested on facts. 23.The learned Sessions Judge, on an over all appreciation of the facts and circumstances, came to the conclusion that the place of occurrence is a crowded place and that it is not a rule of law that the witnesses, in order to make themselves believable, ought to state the entire chain of events. Having regard to the fact that the **Crl.A.395/2010** 25 appellant has set up his defence entirely basing on the evidence of PW1 who gives the entire chain of events in his evidence, the omission of PW2 and PW3 to speak certain aspects of the prosecution version will not assume any material significance. The evidence of PW2 and PW3 only corroborates the version of PW1 in material particulars. The first phase of the incident is the altercation between the appellant and the deceased outside the Pranam hotel which lasted for sometime according to PW1. The second phase of the incident starts when the appellant and deceased Santhosh are separated by certain persons. The third phase of the incident commences immediately thereafter when the deceased Santhosh takes up a stone from the ground and hurls it at the accused. Immediately thereafter, the appellant whips out the knife kept by him in his possession and stabs the deceased Santhosh on his abdomen. PW1 arrives at the scene during the latter half **Crl.A.395/2010** 26 of the first phase and sees the occurrence till the end of the third phase. PW2, on the other hand, sees only the latter half of the third phase when the appellant stabs the deceased. Though PW3 claims to have seen all the three phases, he omits to mention the fact that deceased Santhosh, in the first half of the third phase, bends down, takes a stone and hurls it at the appellant. - 24.We are of the view that it will be safe for us to place absolute reliance on the evidence of PW1 as the true version of the events which took place outside Pranam hotel on 27.1.2005 at about 5.15 p.m. The evidence of PW2 and PW3 only corroborates the version of PW1 which is in tune with the defence version. - 25.Now the question is whether the appellant is justified in the exercise of his right of private defence. The learned Sessions Judge, after close evaluation of the **Crl.A.395/2010** 27 evidence, came to the conclusion that the appellant was not entitled to the right of private defence owing to the following reasons: (i). Though the deceased had pelted a stone at the appellant, the same had passed off without hitting him. It was thereafter, that the appellant had stabbed on the abdomen of the deceased. (ii). There cannot be any reasonable apprehension of danger to the body of the appellant at the moment the appellant had taken out a knife and stabbed the deceased . (iii). There was no reason, let alone a convincing one, for the appellant to carry MO1 weapon in his possession. No evidence was let in to show that the appellant had any engagement on the relevant day. **Crl.A.395/2010** 28 (iv). The victim was unarmed and even if the appellant had any apprehension in his mind, the act committed by the accused cannot be justified in the facts and circumstances. (v). The admitted fact that the appellant and the deceased Santhosh were living with hostility would reveal that the act of the appellant was vindictive and retributive. (vi). The evidence reveals that there was a free fight between the parties and the appellant had acted with pre-meditation after keeping a deadly weapon in his possession. Being a free fight, the question as to who attacks and who defends, is wholly immaterial. (vii). The injury inflicted on the deceased by the appellant reveals that his version with regard to the incident is not true. **Crl.A.395/2010** 29 26.Before evaluating the relevant facts, we shall remind ourselves of the settled principles governing the right of self defence. 27.The basic and wholesome idea u/s 100 of the IPC is to see that no innocent person is convicted. While enacting S.96 to S.106 of the Indian Penal Code, and including it in Chapter IV of the Code dealing with general exceptions, what was envisaged is that it is a “right of the people” to protect his life and limb and those of the others. The said right must be read and understood with reference to Article 21 of the Constitution. When under attack by an assailant, every person is given a statutory right to defend his life and those of others. If the right is taken away, the innocent will suffer and anti social elements will take over the reigns of the society. It is to secure this right that S.6 of the Indian Penal Code strikes a warning note. It is to be borne in mind that **Crl.A.395/2010** 30 criminal jurisprudence is eloquent enough to cast an obligation or duty on the Court to consider as to whether offence alleged is covered by the general exceptions to criminal liability. It is by now settled that there is no imperative duty or obligation on an accused to take up a specific plea or set up a defence. If from the entire evidence, a case is covered by any of the general exceptions to criminal liability, the Court is bound to take into consideration the said plea. The law does not require a law abiding citizen to flee or to act like a coward when he is faced with a grave apprehension to his life or property. The right of private defence is designed to serve a social purpose and deserves to be fostered within the prescribed limits. The said right or protection cannot be extended beyond the necessities of the case as otherwise it will encourage a spirit of lawlessness and disorder. Only when there is real apprehension that the aggressor might cause death **Crl.A.395/2010** 31 or grievous hurt, can the right of private defence of the defender extend to causing of death. It is also settled by a catena of decisions that a mere reasonable apprehension is enough to put the right of self defence in operation. It is also settled that a right of self defence is only a right to defend oneself and not to retaliate. While exercising the right of private defence, it shall in no case extend to the inflicting of more harm than it is necessary to inflict , for the purpose of defence. At the same time, it is difficult to expect from a person who is exercising this right in good faith , to weigh “with golden scales” what maximum amount of force is necessary to keep within the right. It would be wholly unrealistic to expect of a person under assault to modulate his defence step by step according to the attack. S.100 of the IPC lays down that on existence of any of the six conditions enumerated therein, the right of self defence can extend to the right of causing death. According to **Crl.A.395/2010** 32 the combined effect of first two clauses of S.100 of the IPC, taking the life of the assailant would be justified on the plea of private defence if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. A person who is in imminent and reasonable danger of losing his life or limb may, in the exercise of right of self defence, inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. While inflicting the harm, it has to be shown that there is no sufficient time for recourse to public authorities, that there must be a reasonable apprehension of death or grievous hurt to the person or danger to the property concerned and that no harm than necessary was caused while exercising the right. It is by now trite that the onus which rests on an accused person u/s 105 of the Evidence Act to establish his plea of private defence is not as onerous as the unshifting **Crl.A.395/2010** 33 burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged beyond reasonable doubt. It is not required for the accused to prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea. The materials before the Court to establish such a preponderance of probability in favour of the defence plea may consist of oral or documentary evidence, admissions appearing in evidence let in by the prosecution or elicited from prosecution witnesses in cross examination, presumptions and the statement of the accused recorded u/s 313 of the Code of Criminal Procedure. ## 28.In **Darshan Singh v. State of Punjab (2010 (2)** **SCC 333),** the Honourable Apex Court, after considering a wealth of decisions on the point, laid down **Crl.A.395/2010** 34 the salient principles in paragraph No.58 of the judgment, which are instructive. _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_ **Crl.A.395/2010** 35 _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 Indian 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._ ## 29.In **Bishna Alias Bhiswadev Mahato and Ors. v.** **State of W.B. (AIR 2006 SC 302)** , It was observed by the Apex Court as follows : **Crl.A.395/2010** 36 _Right of private defence" is not defined. Nothing is an offence in terms of Section 96 of the Penal Code, if it is done in exercise of the right of private defence. Section 97 deals with the subject-matter of private defence. The plea of right of private defence comprises the body or property. It, however, extends not only to the person exercising the right; but to any other person. The right may be exercised in the case of any offence against the body and in the case of offences of theft, robbery, mischief or criminal trespass and attempts at such offences in relation to property. Sections 96 and 98 confer a right of private defence against certain offences and acts. Section 99 lays down the limit therefore. The right conferred upon a person in terms of Section 96 to 98 and 100 to 106 is controlled by Section 99. In terms of Section 99 of the Penal Code, the right of private defence, in no case, extends to inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 provides that the right of private defence of the body extends under the restrictions mentioned in the last preceding section to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions enumerated therein, namely, "First -- Such an assault, as may reasonably cause the_ **Crl.A.395/2010** 37 _apprehension that death will otherwise be the consequence of such assault; Secondly -- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault". To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden in this behalf is on the accused._ 30.We deem it fit to catalog certain admitted facts which is borne out from the evidence let in by the prosecution. (a). The appellant had tendered evidence in a criminal prosecution instituted against deceased Santhosh, PW2 and another. (b). Aggrieved by the above fact, the appellant was threatened by deceased Santhosh which led to the appellant submitting Ext.P6 complaint before the police. (c). Deceased Santhosh as well as the appellant was summoned to the police station and as is revealed from **Crl.A.395/2010** 38 Ext.P7 register, Santhosh was asked to desist from persisting with the objectionable acts. (d). On the date of occurrence, there arose an altercation between the appellant and the deceased outside the Pranam hotel at about 5.00 p.m. As to how the altercation started, at whose instance and its nature are all unknown. PW1 on hearing sounds of altercation comes out of Pranam hotel and in his words, he had occasion to see a push and pull between the appellant and the deceased and the said incident lasted for about five minutes. Though the duration is not stated PW3 also speaks about the altercation. The appellant asserts that the deceased was the aggressor. (e). Both the appellant and the prosecution asserts that the parties to the altercation were separated by the local people. (f). After the appellant and the deceased were separated, the deceased bent down and took a stone **Crl.A.395/2010** 39 and hurled it at the accused who was standing close by. According to the defence, the intention was to hit on the head with the stone. Whatever that may be, the stone missed the head of the accused by a whisker. - (g). Without losing any moment, the accused took a knife wrapped in a paper and hidden somewhere and stabbed the deceased on his abdomen. (h). After inflicting a single stab, the accused left the place. - 31.The learned counsel appearing for the appellant justified the carrying of the knife by the appellant on the ground that he works as a part time cook and that the said weapon was just an implement used by him for his avocation. On the other hand, the learned DGP contended that carrying of such a weapon by the appellant cannot be countenanced and that the same only reveals the intent of the appellant. The learned **Crl.A.395/2010** 40 Sessions Judge came to the conclusion that the appellant was not justified in carrying a deadly weapon in his possession more so when he had no case that he had any cooking engagement on the date of incident. The learned counsel appearing for the appellant has contended that as per the prosecution version, there was an altercation between the appellant and the deceased and if the prime prosecution witnesses were to be believed, the altercation lasted for about five minutes. If the appellant had any malicious intent, he would certainly have taken out the knife earlier and would have put an end to the deceased. This, according to the learned counsel, was sufficient enough reason to conclude that the appellant had taken out the knife only when he apprehended that death or grievous injury to himself would otherwise be the consequence. It was also pointed out that the knife was flashed by the appellant immediately after the deceased had attempted **Crl.A.395/2010** 41 to hit the head of the appellant by the granite stone and there was no time for weighing the consequences on a golden scale. 32.The question thus boils down to the fact as to whether the carrying of the weapon by the appellant is justified and as to whether the picking up and throwing of the stone by the deceased at the appellant caused apprehension in the mind of the appellant that death or grievous injury will be the consequence of such assault. It is of course, true that PW1 as well as PW2 had spoken about an altercation between the appellant and the deceased outside Pranam hotel. As stated earlier, we are in the dark as to who was the aggressor and how the altercation proceeded. The appellant vociferously asserts that the deceased was the aggressor and relies on the evidence of PW1, who only says that there was an altercation. We take note that only a single injury **Crl.A.395/2010** 42 was inflicted by the appellant on the abdomen of the deceased but at the same time, we have reservations with regard to the explanation offered by the appellant justifying the possession of the knife with him. Ext.P6 and P7 reveals that he had complained before the police with regard to the objectionable acts of the deceased and therefore, took recourse to the public authorities. The incident had occurred at 5.15 p.m at Thokkilangadi bazar which is a very busy area. There were several persons in the town square in the bazar and it has come out in evidence that after the initial altercation the appellant and the deceased were separated. The right of private defence of body extending to the voluntary causing of death cannot be accepted in a case where (a). the evil averted was a lessor evil than the offence committed to avert it or (b). where the evil could have been averted by anything short of the commission of that offence or (c). where **Crl.A.395/2010** 43 more harm was done than was necessary for averting the evil. 33.Of course, whether the appellant could have reasonably apprehended and anticipated the suffering of grievous injury or death is his own assessment in the given set of circumstances. But the fact remains that the appellant was armed with a knife and the first encounter was separated by good Samaritans who were present at the scene of occurrence. We are of the view that the appellant, by taking out MO1 and inflicting the fatal injury on the abdomen of the deceased, had clearly exceeded the right of private defence more so when the deceased was unarmed .The case of Appellant , in our view does not satisfy the tests laid down by the Apex Court. - 34.Now the question is whether the appellant is liable to be punished u/s 302 of the IPC. Exception 2 of Section **Crl.A.395/2010** 44 300 of the IPC says that culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and caused the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. If the exercise is intentional, the offence is murder and if the same is unintentional, the same is culpable homicide. 35.In **Ankush Shivajirao Gaekward V State of Maharashtra (AIR 2013 SC 2454)** the Apex Court relying on the earlier Judgement of **Pulicherla Nagaraju @ Nagaraia Reddy v. State of A.P. ( 2006 CriLJ 3899)** , had occasion to enumerate some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused. **Crl.A.395/2010** 45 ## It was observed as follows:- _Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a_ **Crl.A.395/2010** 46 _vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. ....._ 36.Applying the above principles to the facts of the instant case, we are of the opinion that the nature of the injury inflicted by the accused, the part of the body on which it was inflicted, the weapon used to inflict the same and the circumstances in which the injury was inflicted, do not suggest that the appellant had the intention to kill the deceased. All that can be said is that the appellant **Crl.A.395/2010** 47 had the knowledge that the injury inflicted by him was likely to cause the death of the deceased. The case would, therefore, more appropriately fall under Section 304 Part II of the IPC. In order to arrive at the above conclusion, we take note of the evidence of PW12, who stated that injury to the small intestine is not necessarily fatal. - 37.The conviction of the appellant u/s 302 is set aside and the same is altered to 304, Part II of the IPC. He is sentenced to undergo rigorous imprisonment for six years . - 38.Crl.Appeal (v). 374 of 2016 is preferred by the victim and the prayer is to enhance the sentence by imposing mandatory fine and also to award enhanced compensation to the appellant. The appellant is justified in submitting that the learned Sessions Judge had **Crl.A.395/2010** 48 committed a grave illegality in not imposing the mandatory fine after finding the accused guilty for the offence under Section 302 of the IPC. However, we have set aside the finding of guilt under Section 302 of the IPC and have held the appellant in Crl.Appeal 395 of 2010 guilty for having committed the offence falling under the second limb of Section 304 of the IPC. We refrain from imposing fine in view of the fact that we intend to order compensation to the victim under the victim compensation scheme. 39.Specific directions have been issued by the Apex Court in **Ankush Shivajirao Gaekward** (supra) concerning victim compensation. Though the award or refusal of compensation in a particular case may be within the Court’s discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. In the case on hand, necessary materials are not **Crl.A.395/2010** 49 before us to apply our mind to arrive at a fair and reasonable compensation. Of course, capacity of the accused to pay compensation constitutes an important aspect of any order under Section 357 Cr.P.C. Due to paucity of materials, we are not in a position to assess the same. We therefore, direct the Legal Service Authority, Thalassery, to decide on the quantum of compensation to be awarded under the Victim Compensation Scheme to the dependants of Santhosh, the deceased. Such compensation shall be distributed to the legal representatives of the deceased. 40.In the result, (a). Criminal appeal No.395 of 2010 is allowed in part. (b). The conviction of the appellant in Crl.Appeal No.395 of 2010 for the offence under Section 302 is set aside and the same is altered to Section 304, Part II of the IPC. He is sentenced to undergo rigorous imprisonment for six years . **Crl.A.395/2010** 50 (c). Crl.Appeal (v) No. 374 of 2016 is partly allowed and the Legal Service Authority, Thalassery, is directed under Section 357-A of the Cr.P.C to decide on the quantum of compensation to be awarded under the Victim Compensation Scheme to the dependents of Santhosh, the deceased. Such compensation shall be distributed to the dependants of the deceased. Sd/- **K.T. SANKARAN Judge** **Sd/RAJA VIJAYARAGHAVAN.V. Judge** Mrcs //True Copy// P.S.To Judge