Mathew v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 CRL.A.No. 935 of 2001() {S.C.NO.310/1999 OF THE ADDL. SESSIONS COURT, ALAPPUZHA} .................... APPELLANT(S)/ACCUSED: ------------------------------------ MATHEW, AGED 50 YEARS, S/O.GEORGE, DRIVER, SKRTC, KALYANAPARAMBIL HOUSE, WARD VI, AROOR, CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.T.D.ROBIN SRI.V.JOHN SEBASTIAN RALPH RESPONDENT(S)/COMPLAINANT: ----------------------------------------------- STATE OF KERALA, REPRESENTED BY C.I. OF POLICE, KUTHIATHODU, (CTRIME NO.202/98 OF AROOR POLICE STATION) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.GIRI, J.** ## **-------------------------** ## CRL.A.No.935 of 2001 ## **-------------------------** Dated this the 16[th ] day of March, 2009. ## **JUDGMENT** The accused in C.C.No.310/99 on the file of the Additional Sessions Court, Alappuzha, who was prosecuted for the offence under Section 302 of the IPC, but convicted and sentenced for the offence under Section 304 Part I of the Code, is the appellant herein. 2. The prosecution case, in brief, is as follows: The accused, a driver of the K.S.R.T.C, purchased 6 cents of property from PW.30 and constructed a house therein. He was residing there with his family. There is a thodu on the western side of the property. Along the southern side of the property, there is a panchayat road which is a deviation off the Subramaniyam road starting from the National Highway. Deceased Treasa and others were residing on the northern side of the house of the accused. Treasa and others converted the thodu so that they could have a facility of a public access to ## **CRL.A.No.935 of 2001** **:: 2 ::** reach the panchayat road on the southern side. While so, the accused reclaimed a portion of the thodu and constructed a compound wall along the southern side of the property and thereby blocked the access. The accused constructed a retaining wall along the reclaimed area and a lean to extending to the reclaimed area. Treasa and others filed petitions before the police and the local authorities seeking a measurement of the property and removal of the encroachment from the thodu. PW.15 the President of the panchayat wrote to PW.17 the Village Officer to measure the property. PW.17 had agreed to measure the property by the afternoon of 16.9.1998. In the meanwhile, deceased Treasa along with her husband, who was examined as PW.4 and others formed themselves into an unlawful assembly and armed with deadly weapons like iron bar, cross bar etc. dismantled a portion of the compound wall constructed by the accused and trespassed into the property of the accused and demolished the newly constructed lean to. Treasa was warned by the accused. The accused took out M.O.1 ## **CRL.A.No.935 of 2001** ## iron bar and Treasa was beaten on her head. She fell down and collapsed. Though she was taken to the Community Health Centre, Thuravoor, she was declared dead. Postmortem was conducted by PW.19 doctor. The accused was charge sheeted for the offence punishable under Section 302 of the Code. 3. The prosecution examined Pws.1 to 23. PW.1 is an eye witness and the first informant. PW.2 is another eye witness. So also PW.3 was an eye witness to the incident. PW.4 is the husband of deceased Treasa. PW.5, though cited as an eye witness, was given up. PW.6, who is the younger brother of Pws.5 and 7, is also an eye witness. So is the case with PW.8. PW.9 was given up by the prosecution. pw.10 is an eye witness. PW.11 was given up by the prosecution. PW.12 is a witness to the inquest report. PW.13 is not an eye witness. But he is the vendor of the 6 cents of property purchased by the accused. PW.14 taxi driver took the deceased to the hospital. PW.15 Panchayat President was examined to prove that a complaint had been lodged regarding the alleged trespass into the ## **CRL.A.No.935 of 2001** ## **:: 4 ::** puramboke thodu by the accused. PW.16 is a witness to Ext.P3 scene mahazar. PW.17 Village Assistant attached to the Taluk office prepared Ext.P4 site plan. PW.18 panchayat secretary proved Ext.P5 mahazar under which the minutes book of the panchayat was seized. The minutes book revealed that a complaint had been received regarding the alleged trespass into the puramboke thodu and reclamation of the puramboke thodu by the accused. PW.15 is the doctor who proved Ext.P7 postmortem certificate. PW.20 the police constable attached to the Aroor Police Station proved Ext.P8, recording the receipt of complaint regarding the trespass into the puramboke thodu. PW.21, another police constable proved Ext.P10 mahazar. PW.22 is the Sub Inspector who recorded the first information statement and PW.23 is the investigating officer. 4. The trial court considered the evidence adduced by the prosecution and took note of the fact that the eye witnesses have spoken to the overt act on the part of the accused in which he had beaten the deceased Treasa on her head inflicting the **CRL.A.No.935 of 2001** ## **:: 5 ::** fatal injury on the deceased. That Treasa died due to a hit on the head which could have been caused by a weapon like M.O.1 was spoken to by PW.19 doctor. The presence of the accused at the scene of occurrence is spoken to by the eye witnesses and is not a matter under serious challenge. The evidence of the eye witnesses PWS.1, 2, 3, 4 , 6, 7, 8 and 10 were found to be sufficient by the court below to find that Treasa died on account of the hit on the head by the accused. 5. The court below considered the plea set up by the accused as one of right of private defence. This, the court below found, was discernible from the cross-examination of the prosecution witnesses. The court below went on to find that the wall on the southern side of the accused and a portion of the lean to constructed by the accused was actually demolished by a gang of more than 15 persons including the prosecution witnesses, and accused had asked deceased Treasa to desist from demolishing the portion of the lean to constructed by the accused. Treasa did not pay heed to it. it is enraged by this, ## **CRL.A.No.935 of 2001** **:: 6 ::** the accused had inflicted the fatal injury using M.O.1 iron bar. The court below went on to hold that the accused cannot be convicted for the offence under Section 302 IPC finding that the injury sustained by Treasa was not intentional. The court below found that the accused could only be convicted under Section 304 Part I, for culpable homicide not amounting to murder, without the knowledge that the act would result in the murder as such. It is under these circumstances, the court below proceeded to convict the accused and sentenced him to RI for 4 years with a further direction to pay a compensation of Rs.30,000/- to PW.4 the husband of the deceased. 6. I heard Mr.T.D.Robin, learned counsel for the appellant and Smt.Pushpalatha learned Public Prosecutor for the respondent. 7. Mr.Robin contended that the plea of the accused was one relating to right of private defence, on the strength of the fact that the accused had genuinely a reasonable apprehension of either death or grievous hurt at the hands of a ## **CRL.A.No.935 of 2001** **:: 7 ::** large number of persons who had gathered on the southern side of his property and who had, using deadly weapons demolished a portion of the compound wall and a portion of the lean to. The accused was entitled to use such force as was necessary to defend his property and since there were a large number of persons armed with deadly weapons, the accused had reasonably apprehended grievous hurt to himself and his wife and it was in these circumstances that a hit was inflicted on the head of the deceased, who had later succumbed to the injuries. Mr.Robin referred to the right available to the accused under Section 100 as also Section 103 of the IPC. 8. It was contended that the prosecution had miserably failed to prove the guilt of the accused. The prosecution had also failed to give any explanation whatsoever for the significant injuries sustained by the accused and his wife. The wife of the accused had suffered a fracture of the vertebra as such. None of the prosecution witnesses speak about any such injuries sustained by the accused and his wife. ## **CRL.A.No.935 of 2001** ## **:: 8 ::** In circumstances where the prosecution has not made an attempt to place the entire truth before the court, the accused is entitled to the benefit of doubt and is, therefore, entitled to be acquitted of the charges levelled against him, it is contended. 9. A brief resume regarding the evidence tendered by the different prosecution witnesses would be necessary. 10. Pws.1 and 2 were eye witnesses, who were present at the spot and they are the accused in S.C.No.137/01 which was tried separately, in which the judgment was pronounced by the same learned Sessions Judge on the same day. In fact, I have considered the appeals against the conviction of the accused in S.C.No.137/01 and the said appeals are being disposed of by a separate judgment today itself. 11. As stated above, Pws.1 and 2 are the eye witnesses who spoke about the presence of the accused along with his wife along with several others including Treasa. Pws.1 and 2 stated that Treasa was poking the plastic sheet. The ## **CRL.A.No.935 of 2001** **:: 9 ::** accused had asked her to desist from continuing with the demolition of the lean to and thereafter, enraged, the accused had, using M.O.1 hit deceased Treasa. The same version is spoken to by Pws.3 and 4 who were there at the site. PW.4 is the husband of the deceased Treasa. Almost on similar lines is the version spoken to by Pws.6, 7, 8, 9 and 10. 12. Mr.Robin contends that all these eye witnesses are, significantly, accused in S.C.No.137/01 and therefore, their evidence should not have been accepted by the court below. He further contends that the prosecution has not made any attempt whatsoever to give reasonable explanation for the injuries sustained by the accused and his wife. He refers to Ext.P1 statement and contends that the eye witnesses had stated that when Treasa was trying to poke the plastic sheet covering the compound wall, the accused had, without any other provocation, proceeded to hit Treasa on the head and she had sustained the fatal injury thereby. It is contended that the eye witnesses did not speak in terms of the prosecution case. ## **CRL.A.No.935 of 2001** **:: 10 ::** That Ext.P1 statement will show that even according to the prosecution, the compound wall had been demolished and the party gathered there had proceeded to demolish the lean to and it was at this time that the accused had exhorted Treasa to desist from proceeding further. That this had driven to the accused to inflict a blow on the head of Treasa. It is true that the eye witnesses did not speak about the demolition of the wall as having taken place prior to the accused proceeding to inflict the head injury on Treasa. It is also submitted that the evidence tendered in this case given by the prosecution witnesses be weighed with certain degree of caution, because they are the accused in S.C.No.137/01 and the charges against them was for offences under Sections 447, 427, 323 and 326 read with Section 149 IPC. But that by itself cannot be a ground to completely reject or eschew the evidence of those witnesses. There is a fair degree of consistency between Pws.1 and 2, 3, 6, 7, 8 and 10. PW.4, the husband of Treasa also speaks along with the eye witnesses. The presence of the accused at the ## **CRL.A.No.935 of 2001** **:: 11 ::** scene of occurrence is fairly clear even going by the crossexamination of the above witnesses. That Treasa had met with her death on account of the hit sustained on her head is also spoken to by PW.19 doctor. 13. The witnesses Pws.1 to 10 who are accused Nos.12, 2, 3, 4, 13, 14, 15, 16, 17 and 18 have spoken to Treasa suffering the fatal injury at the instance of the accused. I have anxiously gone through the evidence once more and I do not find any reason to conclude that their evidence must be completely eschewed from consideration and their evidence should be stated to be unbelievable only for the reason that they are the accused in the other case. 14. As I stated above, the presence of the accused in the scene of occurrence is not a matter in dispute. The fact that Treasa was present at the scene is also not dispute. That Treasa succumbed to the injury, caused by the hit on her head, has been proved by the prosecution and there is no serious suggestion that Treasa had died on account of a scuffle. In fact, ## **CRL.A.No.935 of 2001** **:: 12 ::** though there is a suggestion that there was a commotion brought about by the trespass into the property and demolition of the compound wall of the accused, there is no material which would legitimately enable the court to pursue that line of enquiry. In the circumstances, I am in agreement with the court below that deceased Treasa had died on account of an injury caused by a blow given by the accused on the head of Treasa. 15. The question is whether the accused is in a position to successfully plead the right of private defence, in the circumstances. 16. Mr.Robin contended that the accused was genuinely apprehensive that such a large gathering of persons in his property armed with deadly weapons could inflict grievous hurt on him and members of his family and also commit damage on his property. Therefore, the right of private defence is available to the accused, and even to the extent of causing death in terms of Section 100 of the IPC. Reference is also made to Section 103 of the IPC, which provides for the ## **CRL.A.No.935 of 2001** ## circumstances when the right of private defence of property extends to voluntarily causing of death or any other harm to the wrong doer. The court below has considered the plea of right of private defence raised by the accused. It will have to be mentioned that the court below found that the aggression insofar as the incident is concerned, seems to have stemmed out of those persons who came to the property of the accused. The accused was, therefore, entitled to defend himself and his property. But the court below found that the right of private defence , even if available to the accused, could not have extended to an extent where the accused caused the death of a person. It is, in these circumstances, that the court below went on to find that the accused is guilty of culpable homicide not amounting to murder and convicted the accused under Section 304 Part I of the IPC. 17. The prosecution witnesses also speak about the fact that many of them had gone together and Treasa was also present among them. One aspect, which has been spoken to by ## **CRL.A.No.935 of 2001** **:: 14 ::** the prosecution witnesses and which seems to be at slight variance from the case of the prosecution as contained in the first information statement, is that as per Ext.P1 the compound wall had been demolished and the lean to was about to be demolished when the accused had intervened. Ext.P1 goes on to say that the accused had warned Treasa not to proceed with the act of demolition. But she did not pay heed to it. The accused fetched a cross bar and hit Treasa. The prosecution witnesses would say that they had all gathered outside the compound wall and Treasa was trying to remove the plastic sheet when the accused had hit her with a crow bar. It may be difficult to accept the version of the prosecution witnesses in this regard completely. But on an appreciation of the evidence of the prosecution witnesses particularly, the eye witnesses, and going by the trend of the cross-examination on behalf of the accused, it could be safely inferred that there was no cause for any previous enmity of a serious nature between the accused on one hand and Treasa, the deceased or her husband or other ## **CRL.A.No.935 of 2001** **:: 15 ::** prosecution witnesses, on the other. No doubt, there was a dispute regarding the alleged trespass effected by the accused into the thodu on the western side and the construction of a lean to as stated above. But, it is not a case where the neighbouring residents have straight away proceeded, armed themselves with deadly weapons and either committed trespass into the property of the accused or committed any mischief as such. Ext.P11 is a complaint which was earlier lodged by some of the neighbours before PW.22 Sub Inspector of Police of the Aroor Police station as early as on 15.6.1998. It was 3 months prior to the incident. PW.15 panchayat president speaks about a complaint having been received in the panchayat. The panchayat secretary PW.18 is a witness to Ext.P5 mahazar under which the minutes book of the panchayat was seized. His evidence goes to show that a complaint was received regarding the alleged unauthorised reclamation of a puramboke thodu by the accused. The evidence of PW.17 Valuation Assistant attached to the Village Office proves Ext.P4 plan. What will ## **CRL.A.No.935 of 2001** **:: 16 ::** have to be inferred is that a fairly large number of persons had gathered at the spot with the grievance regarding the construction of a compound wall, encroaching the nearby puramboke thodu. The construction of the wall as evidenced by Ext.P4 obviously resulted in the reduction of the width of the puramboke thodu lying on the side. The evidence on record cannot lead one to the conclusion that the assembly was for the purpose of inflicting any harm as such on the accused or the members of his family. In fact, going by the trend of crossexamination as well, there is no suggestion that any of the persons, who had gathered there, including Treasa - the deceased had made any overt act with an intention to inflict any harm on the accused or the members of his family. Of course, there is a suggestion that, after the demolition of the wall, there was a scuffle between the accused and the people gathered there and Treasa would have sustained an injury at that point of time. But, it is difficult to accept this suggestion as such. The suggestive was only feebly pursued. In these ## **CRL.A.No.935 of 2001** **:: 17 ::** circumstances, I find it difficult to accept the contention of the learned counsel for the accused that the accused could have reasonably entertained an apprehension in the mind that the gathering of the people with crow bar outside the compound wall, was with an intention to cause any grievous hurt to himself or members of his family. 18. The decisions cited by the learned counsel for the accused viz., **Govindan Neelambaran v. State of Kerala {AIR 1960 Kerala 258}, Ahmad Din v. Emperor {AIR 1927 Lahore 194}, Akloo Mia v. the State {AIR 1949 Assam 7}** and the decision of the Supreme Court in **Puran Singh v. State of Punjab {AIR 1975 SC 1674}** which have been taken note of by the court below, only points to the law that is considered to have established regarding the right of private defence of a person one of the limitations mentioned therein, is that more harm than is necessary could not be caused and that there must be a reasonable apprehension of grievous hurt or death to the person or property of the concerned accused. The evidence on **CRL.A.No.935 of 2001** **:: 18 ::** record do not suggest that the accused could have had a reasonable apprehension of death or a grievous hurt to the person of the accused or the members of his family. 19. Exts.D2, D3, D4 and D5 are the certificates which show the nature of the injuries sustained by the accused and his wife in the incident which took place on 16.9.1998. The accused had suffered a lacerated wound on the left thigh, and had reported severe pain on both eyes and back of his chest and leg. The wife of the accused had suffered a lacerated injury on the right cheek 2 cms and 1 cms and contusion on the left wrist and there was complaint of pain on the left shoulder and left knee. The discharge certificate of the wife of the accused shows that she was also treated for a fracture of the 5[th] vertebra. According to the accused, there were more than 18 persons who gathered at the spot. According to the accused, all of them were armed with crow bar, iron rod etc. That portion of the evidence is proved by Ext.P8 FIR. I have already mentioned that the injuries sustained by accused and his wife **CRL.A.No.935 of 2001** **:: 19 ::** cannot be considered as grievous hurt and it is a moot question whether the injuries suffered by the accused and the fracture of the vertebra suffered by the wife of the accused is proved to have been the result of the injury inflicted in the incident at the spot or on account of any fall suffered during the incident. Be that as it may, the evidence on record do not suggest that the accused could have legitimately entertained a reasonable apprehension of grievous hurt to the body of the accused or members of his family. 20. The circumstances under which the right of private defence could be extended to causing the death of a person are those which are mentioned in Section 103 IPC. The same reads as follows: **“103 When the right of private defence of property extends to causing death -- The right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the coming of which, or the attempting to commit which, occasions the exercise of the right, be** **:: 20 ::** ## **CRL.A.No.935 of 2001** **an offence of any of the descriptions hereinafter enumerated, namely:--** **First: Robbery;** **Secondly: House-breaking by night; Thirdly: Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; Fourthly: Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.”** 21. Clauses I and II obviously do not have application to the present case. Clause 3 also has no application. 22. Learned counsel for the accused points out that mischief was one of the offences which were committed by the persons who had gathered there. Assuming this is to be so, it is not sufficient. It cannot be said from the evidence adduced in the case,that the accused could have entertained a reasonable apprehension that death or grievous hurt will be caused to him ## **CRL.A.No.935 of 2001** **:: 21 ::** or members of his family by the persons who had gathered at the spot. They were only, aggrieved by the construction of a compound wall, in such a manner as to be perceived as an encroachment of the puramboke land. The nature of the injuries sustained by the accused and his wife, in my view, are not indicative of the fact that causing any hurt let alone grievous hurt, was a thought which was entertained by any persons who had gathered there. 23. Learned counsel for the accused submits that when a right of private defence is being exercised by the accused, the court is not expected to weigh in golden scales the defence measures that he should have adopted in such circumstances. It is true that one cannot weigh in golden scales whether there was any excess committed by the court. But the court cannot also lose sight of the fact that one of the cardinal rules that has to be applied in considering the plea of right of private defence is whether the harm caused was more than what was necessary. I take note of the fact that going by the ## **CRL.A.No.935 of 2001** ## defence set up by the accused, Treasa was one of the persons engaged in the act of demolition of the compound wall and the lean to constructed by the accused. The other prosecution witnesses, according to the accused, were also engaged in a similar activity. Under any circumstance, was it justifiable on the part of the accused, in the context of Sections 100 and 103 of the IPC to have inflicted such a serious blow on the head of the deceased so as to cause the death of such person. Did the demolition of the compound wall or even the lean to, afford a justification in that regard? I do not think that, the instant case is one where the right of private defence, was legitimately exercised by the accused in a manner as to cause the death of a person by one single act. I am in agreement with the court below that the plea taken by the accused of a right of private defence as such suggests an excuse for causing the death of Treasa. 24. On an anxious re-appreciation of the evidence in the case, I am in agreement with the findings of the court below **CRL.A.No.935 of 2001** **:: 23 ::** that the accused had therefore, committed the offence of culpable homicide not amounting to murder. But, I agree with the learned counsel for the appellant that the act attributed to the accused, for which he has been found guilty, would more appropriately come under Section 304 Part II. There could have been apprehension or anxiety with the accused, when he found a crowd of persons demolishing the wall constructed by him. It is not a case where the evidence on record suggests that the accused had any intention to cause death or cause such bodily injury as is likely cause the death. 25. In the circumstances, I am of the view that the conviction of the accused should be appropriately under Section 304 Part II IPC. 26. Coming to the question of sentence, I heard learned Public Prosecutor also. 27. Learned counsel for the accused submits that the accused has three children. Subsequently, on account of this case, he has been compelled to sell the property and leave the ## **CRL.A.No.935 of 2001** **:: 24 ::** place. In my view, the interest of justice would be met if the accused is sentenced to undergo rigorous imprisonment for two years. I also find that the direction to pay compensation, as has been done by the court below, is not justified, in the circumstances. Accordingly, the appeal is allowed in part and conviction of the accused under Section 304 Part I of the IPC is set aside and instead, the accused is convicted under Section 304 Part II IPC. He is sentenced to undergo rigorous imprisonment for a period of two years. The direction to pay compensation shall stand set aside. Sd/- **(V.GIRI) JUDGE** sk/ ## **//true copy//** ## **P.S. to Judge**