Thomas S/o Sebastian v. State of Kerala

**“C.R.”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 08TH DAY OF APRIL 2019 / 18TH CHAITHRA, 1941** **CRL.A.No. 634 of 2015** **AGAINST THE ORDER/JUDGMENT IN SC 24/2013 of IV ADDITIONAL DISTRICT COURT, THODUPUZHA DATED 22-05-2015 AGAINST THE ORDER/JUDGMENT IN CC 30/2012 of JUDICIAL MAGISTRATE OF FIRST CLASS - I, IDUKKI CRIME NO. 276/2011 OF Idukki Police Station, Idukki** **APPELLANT/1ST ACCUSED:** **THOMAS S/O SEBASTIAN, MANIYAMPRAYIL HOUSE, VENMANI KARA, KANJIKKUZHY VILAGE, NOW RESIDING AT PARASSERIL (H), NAYARUPARA KARA, THANKAMANI VILLAGE.** **BY ADV. SRI.N.J.MATHEWS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY STATE PROSECUTOR/PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 682 031.** **BY ADVS. SRI.SURESH BABU THOMAS, ADDL.DGP SRI.S.U.NAZAR, SR.PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2019, THE COURT ON 08.04.2019 PASSED THE FOLLOWING:** **“C.R.”** ## **JUDGMENT** ## Ashok Menon, J. The 1[st] accused in S.C.No.24/2013 on the files of the Additional Sessions Court, Thodupuzha, who stands convicted for life imprisonment and fine of Rs.50,000/-, and in default, to simple imprisonment for two years under Section 302, I.P.C. and for rigorous imprisonment for one year under Section 324, I.P.C., is in appeal before us, aggrieved by the conviction. 2. The appellant, as the 1[st] accused and his wife as the 2[nd] accused, stood trial on a charge sheet under Sections 302, 324 and 120B, I.P.C. laid by PW25, the C.I. of Police, Idukki, who completed the investigation initiated by PW21, his predecessor in office. Ext.P3 F.I.R. was registered as Crime No.276/11 of Idukki Police Station by PW8, the SPCO on GD charge duty at that point in time, on the basis of Ext.P1 F.I.statement given by PW1, the father of the deceased. The learned Sessions Judge acquitted the 2[nd] accused for want of evidence _Crl.A. 634 of 2015_ 3 regarding conspiracy, while the 1[st] accused was found guilty and convicted as mentioned above. 3. The prosecution case in brief is thus: The accused couple hatched a criminal conspiracy to murder the deceased Manoj, a Civil Police Officer, the son of PW1, and being a party to the conspiracy, the appellant committed the murder of the said Manoj by stabbing him to death, at about 5.20 pm, on the 21[st] of May, 2011, near a petrol pump at Cheruthoni. 4. The facts as stated by the prosecution, are thus: The 2[nd] accused was allotted, and she set up a help desk at the District Passport Office, Idukki, expending a sum of Rs.70,000/-. Deceased Manoj was at that time, posted on deputation at the District Passport Office. He had allegedly rendered financial help by advancing a sum of Rs.35,000/- to the 2[nd] accused, on condition that he would be getting a share of the income earned from the help desk. On 09.04.2011, taking advantage of the opportunity that 2[nd] accused was alone at her home, the deceased allegedly trespassed into her house and subjected her to rape. On _Crl.A. 634 of 2015_ 4 17.05.2011, she lodged Ext.P2 complaint before PW6, the Woman Inspector at the Vanitha Cell, Idukki. Both the accused, and the deceased were summoned by PW6 to the Vanitha Cell for a discussion. On 21.05.2011, all the three of them as well as PW1, reached the Vanitha Cell and they had a discussion. It was resolved that the partnership between the deceased and the 2[nd] accused shall be culminated, and towards the settlement, PW1, on behalf of his son, handed over to the accused, a sum of Rs.35,000/-. Statements of both the 2[nd] accused and the deceased were recorded by PW6. Thereafter, all the three of them went to the office of Advocate Sibi Thomas where, his clerk, PW5, drafted an agreement, which was signed by the parties, and they dispersed. 5. At about 5.20 PM, the 1[st] accused proceeded towards his motor cycle parked near a petrol pump. He took out a bottle, containing some liquid, from the pouch of his motorcycle, which was later identified to be concentrate phenol as per Ext.P7(b) report of the F.S.L., approached the deceased, and splashed it over him. PW1, who on seeing this, approached them, and he _Crl.A. 634 of 2015_ 5 too got splashed with the corrosive liquid, causing burn injuries. It is alleged that, thereafter the 1[st] accused attempted to set the deceased ablaze. When the deceased tried to escape, he was chased, slapped and brought down to the ground by the appellant, who drew MO.1 knife, concealed in his hip, and stabbed the deceased repeatedly on the chest, abdomen, and other vital parts, causing 14 stab wounds, apart from abrasions. He succumbed to the injuries. Following the attack, appellant allegedly poured the liquid on himself and also attempted to consume some of it, and then surrendered before the Police with MO1 in his hand. Since he was injured due to the burn injuries, he had to be hospitalised, and kept under police surveillance. His arrest was formally recorded only on 01.06.2011, after his discharge from the hospital. Being part of the conspiracy, his wife, arraigned as 2[nd] accused, was arrested on 02.06.2011 on her surrendering before the Police. The final report under Section 173(2), Cr.P.C. was submitted by PW25 before the JFMC-I, which was taken cognizance of as C.P.No.30/2012 _Crl.A. 634 of 2015_ 6 and committed to the Court of Sessions, Thodupuzha for trial after due compliance of the formalities under Sections 207 and 209, Cr.P.C. 6. Both the accused pleaded not guilty to the charge. The prosecution examined PW1 to PW26, marked Exts.P1 to P25 and the material objects were identified as MO1 to MO8. After closing the evidence, the learned Sessions Judge questioned the accused under Section 313, Cr.P.C. Written statement was submitted by the appellant. As the learned Sessions Judge did not deem it appropriate to acquit the accused under section 232 Cr.P.C., they were directed to enter upon their defence. DW1 to DW9 were examined and Exts.D1 and D2 series were relied on. 7. The learned Sessions Judge found the 1[st] accused guilty and convicted him as stated above, while the 2[nd] accused was acquitted. 8. The defence set up by the accused was that the deceased was promiscuous, and constantly harassed the 2[nd] accused and other women employees. As a result of which, one Renju left her employment from the help _Crl.A. 634 of 2015_ 7 desk. The deceased had once molested the 2[nd] accused, and then on 09.04.2011, subjected her to rape. Such was the impact of fright and intimidation caused by the deceased that the 2[nd] accused and her children sought resort in a shelter home at Vazhathoppe. It is only after mustering some courage on 17.05.2011, she lodged Ext.P2 complaint before PW6. It is stated that after the discussions regarding the settlement and winding up of the partnership between the deceased and the 2[nd] accused, the 1[st] accused was approaching the petrol pump to retrieve his motor cycle, parked there. PW1 approached him stating that he had something to say. By that time, the deceased and a few of his friends, waiting there, ganged up and threatened him of dire consequences in case he did not withdraw the complaint against the deceased. PW1 handed over a knife to his son provoking him to do away with the 1[st] accused. According to him, it was the deceased who sprinkled some powder on him, causing pain and burn. A scuffle ensued between them. The 1[st] accused succeeded in disarming the deceased of the knife. The deceased _Crl.A. 634 of 2015_ 8 somehow sustained some injuries about which the 1[st] accused pretends ignorance and says that if at all any such injury is seen caused to the deceased in the scuffle that ensued, the act was purely in selfdefence, and therefore, the appellant is entitled to the benefit of exemption under Section 100 of the I.P.C. 9. Advocate N.J.Mathews, appearing for the accused, forcefully argued in defence of the appellant, stating that the prosecution has failed in explaining what had happened to the 1[st] accused from the date of occurrence till 01.06.2011, when he was formally arrested. It is argued that the 1[st] accused was seriously injured and was taken to the hospital at Idukki in an unconscious stage, from where, he was referred to the Kottayam Medical College Hospital and treated. He was only arrested subsequent to his discharge from the hospital. The learned Counsel would also argue that PW1, who was injured, was also taken to the hospital and Ext.P23 is the medical certificate issued describing his injuries. The reasons for the _Crl.A. 634 of 2015_ 9 injury is explained by him as follows: “While walking along the road, a known-person poured some liquid upon him and attempted to set him ablaze on 21.05.2011 at about 5.30 PM near the petrol pump at Cheruthoni.” What the learned defence Counsel wants to impress upon us is that the 1[st] accused being a person well known to him, he should normally have disclosed the identity of the accused to PW22, the Doctor who prepared Ext.P23 certificate. The identity of the accused as the person who poured the corrosive substance on PW1 is not proved sufficiently, is the argument of the learned Counsel. 10. The learned Counsel also argues that PW6, the Circle Inspector attached to the Vanitha Cell, who had allegedly intervened in the dispute between the deceased and the 2[nd] accused and admits having received Ext.P2 complaint filed by the 2[nd] accused. She also admits having recorded the statement of the 2[nd] accused and the deceased, but it is very surprising that she did not register any crime based on the complaint. This would indicate that she did not want to proceed with the complaint and was only attempting for a _Crl.A. 634 of 2015_ 10 settlement, since the deceased was a policeman. The learned Counsel also points out to the fact that the settlement did not materialise, because the 2[nd] accused refused to sign the statement, which was recorded by PW6, for the reason that it did not depict the true facts stated by her. This according to the learned Counsel is an indication that the deceased had very serious grouse against the accused for not settling the complaint against him. 11. The 1st accused got himself examined as DW1 under Section 315, Cr.P.C. Ext.D2 series are the documents pertaining to his treatment at the hospital. He has stated that MO1 is not the knife allegedly used for stabbing, which, according to him was much smaller in size. DW3 and DW4 are the doctors, who treated him and made entries in Ext.D2 series case sheet. It is seen that he had sustained 20 to 30% superficial burns. DW5 is the witness, who was examined for the accused, to show that he had seen the 1[st] accused at Idukki Hospital before being taken to the Medical College Hospital at Kottayam. In the defence set up by the _Crl.A. 634 of 2015_ 11 accused, it is indicated that he had gone to attend a meeting at Vandiperiyar on 20[th] and therefore there is little possibility of him acquiring the corrosive substance from Kambam as alleged by the prosecution. The learned Counsel also argues that this is a case where the appellant is entitled to the exemption under self-defence. 12. _Per contra,_ the learned Public Prosecutor defending the judgment submits that the prosecution has proved its case beyond any semblance of doubt and that the appellant has not been able to prove that it is a case of self-defence and even if the injuries sustained by him is taken as an act of aggression on the part of the deceased, the nature of injuries sustained by the appellant in comparison to the injuries sustained by the deceased would indicate that the appellant was the aggressor and did not raise any case of self-defence. 13. PW1, the father of the deceased, Joseph, testifies that his son, a police officer, was stationed at Painavu in Idukki on deputation in the Passport Cell at Idukki. He also testifies that there was an illicit _Crl.A. 634 of 2015_ 12 relationship between the 2[nd] accused and his son, and because of this, the services of 2[nd] accused was terminated, and his son was relieved from his deputation at the Passport Office, and sent back to the A.R.Camp. On account of her losing the job, the accused entertained a grouse against the deceased and lodged a false complaint against him before the Vanitha Cell at Idukki, which she used as a lever for extorting a sum of Rs.one lakh as compensation. The deceased was summoned to the Vanitha Cell on 20.05.2011. PW1 also accompanied his son. Since the appellant was not present, the matter was postponed to 21.05.2011. PW6 intervened in the talk that took place at about 2.00 PM on the fateful day. PW1 testifies that the accused were willing to give up Ext.P2 complaint, provided they were compensated appropriately. This version of PW1 is also supported by PW6, who states that the discussion was about the quantum of compensation to be given. From the Vanitha Cell, the accused, the deceased and PW1 went to the office of Advocate Sibi Thomas in Idukki and an agreement was drafted by PW5, _Crl.A. 634 of 2015_ 13 the Advocate Clerk. It is in terms with the agreement that PW1 handed over Rs.35,000/- to the 2[nd] accused. For the purpose of taking photocopy of that agreement, they proceeded towards a shop. The version of PW1 is that under the pretext of discussing something with the deceased, the appellant took him to the precincts of the petrol pump at Cheruthoni, where the bike of the accused was parked. PW1 also followed them. Suddenly, the appellant took out a small plastic bottle concealed in the pouch over the petrol tank and poured some liquid from out of that bottle on the deceased. As the liquid was splashed, PW1 who was standing nearby, also got a portion of that liquid poured over him. He felt a burning sensation and the liquid had a pungent smell. Thereafter, the appellant attempted to set the deceased ablaze by lighting a match stick. Seeing this, PW1 alerted his son to run away. But his attempt to flee was thwarted by the appellant, who knocked him down. Thereafter, he drew MO1 knife and stabbed him multiple times on the chest, thigh, back and abdomen. On PW1 raising alarm, people gathered. On seeing the people _Crl.A. 634 of 2015_ 14 gathering around, the appellant proceeded towards the police station. The deceased was taken in a police jeep, first to the District Hospital at Idukki, and from there, he was referred to the Medical College Hospital, Kottayam. By about 10.00 PM, he succumbed to his injuries. 14. The oral testimony of PW1 is corroborated in all material particulars by PW2 and PW3. PW2 is a resident near the scene of occurrence and also conducting a grocery shop attached to his house. He has testified that on hearing a hue and cry from the petrol pump, he reached the spot and witnessed the 1[st] accused stabbing the deceased repeatedly, with the deceased pinned to the ground. PW3 saw the occurrence while was going towards the direction to the Vanitha Cell. His attention was also drawn on hearing the hue and cry and corroborates the testimony of PW2 by stating that he saw the 1[st] accused stabbing the deceased with MO1 knife. MO2 is identified as the shirt worn by the deceased at the time of occurrence as identified by the witnesses. PW4 is cited as an eye _Crl.A. 634 of 2015_ 15 witness by the prosecution, but he turned hostile. However, he too would admit having heard the hue and cry from near the petrol pump and he saw the injured being taken in a police jeep. 15. PW9 was the driver of the jeep attached to the office of the C.I. of Police, Idukki and he testified that at about 5.30 PM while he was approaching in his jeep towards Cheruthoni petrol pump, he saw a group of people gathered around the injured lying on the ground. It was he along with two or three other persons, who lifted the injured in the jeep and shifted him to the District Hospital. PW1 also accompanied him in the jeep. PW9 also saw some injuries on the face of PW1. He informed about the occurrence to the C.I. of Police immediately. 16. Ext.P5 autopsy report was prepared by PW11, the Assistant Professor and Deputy Police Surgeon, Medical College Hospital, Kottayam. The following ante mortem injuries were noticed on the body of the deceased:- (1) Incised penetrating wound 3.5 x 1 cm obliquely placed on the left side of front of chest, puncturing the lower lobe of left lung having a minimum depth of 8 cm leaving the left lung _Crl.A. 634 of 2015_ 16 collapsed and the left chest cavity contained 750 ml of blood. - (2) Incised wound was found on the right side of the chest having 18 cm below the top of axilla, which entered the chest cavity by penetrating the 8[th] intercostal space, transfixed the diaphragm and entered the abdominal cavity where it transfixed the right lobe of liver and ended in the back wall of abdomen by puncturing the mesentery. This injury was directed downwards and to the lift having a minimum depth of 12 cm and the abdominal cavity contained 500 ml of fluid blood. - (3) Incised injury was of similar size, obliquely placed on the right side of the abdomen with lower outer sharply atend 22 cm below the back fold of axilla. It entered the chest cavity by penetrating the 10[th] intercostal space, transfixed the diaphragm and entered the abdominal cavity, partially cutting the lower margin of right lobe of liver. - (4) Incised penetrating wound measuring 2.5 x 1 cm vertically placed on the front of abdomen with its lower sharply cut end 5 am above the level of pubis. This would penetrated the abdominal wall and ended in the abdominal cavity having a minimum depth of 3.5 cm. - (5) Incised wound having 3.2 x 1 x 3 cm placed on the left side of back of trunk with its lower outer blunt end 3.5 cm below the back fold of arm pit. - (6) Incised wound measuring 3.5 x 1.5 x 2.5 cm obliquely placed on the left side of back of trunk with its lower blunt end 2.5 cm below the fifth injury. - (7) Incised wound measuring 3.2 x 0.7 x 2.5 cm obliquely placed on the left side of back of trunk with its upper sharply cut end 13 cm below the sixth injury. - (8) Incised wound measuring 3.4 x 1 x 2 cm obliquely placed on the left side of back of _Crl.A. 634 of 2015_ 17 trunk with its upper inner sharply cut end 10 cm below the top of shoulder and 14.5 cm outer to midline. - (9) Incised injury measuring 3 x 0.8 x 0.2 cm horizontally placed on the left side of back of trunk 5 cm below the root of neck and 3.5 cm outer to midline. - (10) Incised wound measuring 3.2 x 0.9 x 2 cm obliquely placed on the right side of back of trunk, with its upper inner end 30 cm below the root of neck and 2 cm to the right of midline. - (11) Incised wound measuring 3.4 x 0.7 x 2 cm vertically placed on the outer aspect of left thigh 8 cm below the top of hip bone. - (12) Incised injury measuring 3.5 x 1.4 x 1 cm obliquely placed on the outer aspect of left arm with its upper inner end 4 cm below the tip of shoulder. - (13) Incised wound measuring 2.5 x 1.5 x 1 cm obliquely placed on the outer aspect of left arm with its upper inner end 4 cm below the tip of shoulder. - (14) Superficial incised wound measuring 1 x 0.5 x 0.3 cm on the front of left hand involving the middle finger 2 cm above its tip. - (15) Abrasion measuring 1 x 0.5 cm on the right side of the face 3 cm outer to the ala of nose was there. - (16) Multiple abrasions were on the deceased over an area of 4 x 2 cm on the left side of the face 3 cm outer to the ala of nose. - (17) Abrasion measuring 1 x 0.5 cm on the left side of neck 3 cm below the ear lobe. - (18) Linear abrasion 5 x 0.2 cm on the left side of chest 7 cm below the level of nipple. - (19) Abrasion measuring 3.5 x 0.7 cm obliquely placed on the right side of back of trunk with its lower inner end 2 cm outer to midline and 30 cm below the root of neck was also noted during the autopsy. _Crl.A. 634 of 2015_ 18 17. According to PW11, injury Nos.1 to 14 could have been caused by MO1 and injury Nos.15 to 19 could have been caused in the scuffle on a rough surface. Death was caused due to the penetrating injuries sustained to chest and abdomen. PW21, the Inspector of Police and Investigating Officer, who filed Ext.P14 report to alter the offence to one under Section 302, I.P.C., after getting informed about the demise of the injured on 22.05.2011. Thereafter, he conducted the inquest and prepared Ext.P4 inquest report. PW7 was the driver of the departmental jeep attached to the Vanitha Cell and PW13 was a Senior CPO attached to the police station, who would testify that while they were sitting near the visitor's room near the Vanitha Cell, they saw the appellant approaching the police station with MO1 blood stained knife. He also informed them that after having stabbed a person, he has consumed poison. There was a foul smell emanating from his body. PW8, another Senior CPO, who was present at the police station and on GD charge, asked the appellant to drop the knife, which he did not do and so he snatched _Crl.A. 634 of 2015_ 19 MO1 from him and took him to the police station close to the Vanitha Cell in the department jeep. The accused was thereafter taken to the District Hospital, Idukki for treatment. MO3 shirt, worn by the deceased, was identified by PW8. PW8 would also testify that at about 7.15 PM, PW1 came to the station and lodged Ext.P1 complaint, on the basis of which he registered Ext.P3 FIR. PW20 is another Senior CPO, who was present in the police station and corroborated the testimony of PW8. Ext.D2 series are the copies of the treatment records pertaining to the treatment of the appellant at the Medical College Hospital, Kottayam. Ext.P21 series are the arrest memo, inspection memo and notice pertaining to the 1[st] accused prepared by PW21. The 2[nd] accused surrendered before the police on the next day and was arrested in accordance with Ext.P22 series arrest memo, inspection memo and notice. MO2 shirt worn by the deceased, was seized by PW21 as per Ext.P11 seizure mahazer with PW18 as attesting witness and identified by PW1. PW8, who seized MO1 knife from _Crl.A. 634 of 2015_ 20 the accused, produced it before PW21, as per Ext.P10 with PW17 as attestor. 18. PW21 also prepared Ext.P6 mahazar for the scene of occurrence, which was shown to him by PW2. Two pieces of granite stone and rexine, found from the scene of occurrence were identified as MO4 and MO5. The motor cycle, belonging to the appellant was also taken into custody as per Ext.P6 mahazar from the scene of occurrence. MO6 and MO7 are the blood stained trousers and underwear, worn by the deceased at the time of occurrence and MO8 was the blood stained gauze collected by the doctor during post morterm. Ext.P15 property list was prepared and all the material objects were produced before the Court. PW21 submitted Ext.P6 forwarding note for the material objects to be examined at the Forensic Science Laboratory. Ext.P17 series are the reports obtained from the FSL, which would go to show that the blood stains contained in the material objects and the blood of the deceased were of the same group. Blood stains were also identified from the MO3 shirt worn by the accused. Investigation was completed _Crl.A. 634 of 2015_ 21 by PW25, who is successor in office of PW21. He collected Ext.P24 particulars pertaining to the registration of the motor cycle in the name of the 1[st] accused, which was released to him as per Ext.P25 bond. The site plan of the scene prepared in accordance with Ext.P6 mahazar was prepared and proved by the Village Officer, examined as PW19. 19. The 1[st] accused was examined as DW1 and he admitted his presence at the scene of occurrence. He had voluntarily surrendered before the Vanitha Cell and taken to the police station by PW7 and PW13 and PW8 seized MO1 knife from him. In his answer to the query put to him under Section 313, Cr.P.C. and in his examination before the Court as DW1, the 1[st] accused has admitted that there was a scuffle between him and the deceased at the scene of occurrence. He also admits having got possession of MO1 knife, which according to him belongs to the deceased. The attempt of the appellant is to establish that the deceased and his father, PW1, supported by a few other friends of the deceased, who were waiting at the petrol pump, were the _Crl.A. 634 of 2015_ 22 aggressors and had ganged up and intimidated him. MO2 and MO3, the shirts worn by the appellant and the deceased respectively, are also identified by him. He also admits presence of his motor cycle at the scene of occurrence. According to him, the corrosive liquid, which was seen poured on the body of the deceased, PW1 as well as himself, was actually poured by the deceased and not by him. The liquid phenol, caused superficial burn injuries on the body of the accused as well as PW1. DW8 is the doctor, who had treated the accused for his eye aliment. DW7 is the Professor and Head of the Department of Forensic Medicine, Medical College, Kottayam and DW3, DW4 and DW8 are other doctors, who had all made entries pertaining to the treatment of the accused in Ext.D2 series case sheets. All the doctors would unanimously say that the injuries were minor and superficial. DW3 would testify that the appellant had sustained 25 to 30% superficial burns. DW2 is the District Co-ordinator of Akshaya Centres in Idukki would testify that the Centre was being conducted by the 2[nd] accused and closed on 23.05.2011 on the _Crl.A. 634 of 2015_ 23 direction from the Dy.S.P. DW5 is a friend of the 1[st] accused. He was summoned to the police station immediately after the occurrence and he found the 1[st] accused unconscious at the time when he was taken to the hospital. DW6, who is a staff working with one Raman Vaidyan at Kamadhenu Ayurveda Vaidyasala, testifies that the 1[st] accused was with them till noon on the date of occurrence. DW9 is the Superintendent of shelter home at Vazhathope, where the 2[nd] accused and her children were housed. But she cannot say anything about the circumstances under which they were brought them to the shelter home. DW4, one of the doctors, who had treated the accused, testifies that the appellant was repenting about his involvement in the crime and even confessed about his crime, and occasionally showed persecutory ideas. He also expressed to the doctor about his wanting to get punished in the crime committed by him. PW1 too had extensive burn injuries on the head, neck, shoulder, which were superficial, and could be caused by phenol in a concentrated form. According to the doctor who treated him, the burn can _Crl.A. 634 of 2015_ 24 be caused by the liquid and the pain could have been unbearable. 20. PW24 is the Secretary of Idukki Women's Council, states that the 2[nd] accused and her three children were taken to the shelter home due to the family disputes. This fact is an indication that it is because of this dispute between accused 1 and 2 that she had to shift her residence to the shelter home. PW1 has testified about the probability of his son having illicit relationship with the 2[nd] accused, could be the reason for the appellant to attack his son. 21. In view of the admission of the accused about his presence at the scene of occurrence and in view of the fact that he had surrendered before PW8, at the police station with MO1 knife, and also because the FSL report confirming the presence of blood of the deceased on MO1 knife as well as on the MO3 shirt worn by the accused, there is conclusive proof of involvement of the appellant in the occurrence resulting in the death of the deceased. The only defence that is open to him is that of self-defence under Section 97, I.P.C. The _Crl.A. 634 of 2015_ 25 learned Counsel for the appellant and the prosecution have relied on catena of decisions on this point and therefore, the only consideration that arises before us is whether the right of self- defence is available to the appellant, and whether it extends to causing death. 22. In assessing the value to be attached to the evidence in such cases, the Courts have to rely more on human probabilities than on the assertions of the witnesses. The Court should take an overall view of the case and if a right of self-defence is made out from the evidence on record, that right should not be construed narrowly because the right of self-defence is a very valuable right and it has a social purpose (see _**Vidhya Singh v. State of Madhya Pradesh, (1971) 3 SCC**_ ## _**244)**_ . 23. Section 100 of I.P.C. states that the right of private defence of the body extends under the restrictions mentioned in Section 99, to the voluntary causing of death if the offence which occasions the exercise of the right be an assault as may reasonably cause the apprehension that grievous hurt will _Crl.A. 634 of 2015_ 26 otherwise be the consequence of such assault. In other words, if the person claiming the right of private defence has to face assailants, who can be reasonably apprehended to cause grievous hurt to him, it would be open to him to defend himself by causing the death of the assailant. Under Section 97 of the I.P.C; when death is caused, the person exercising the right must be under reasonable apprehension of death, or grievous hurt, to himself or to those whom he is protecting. ( _**Jai Dev v. State of Punjab, AIR 1963 SC 612, Amjad Khan v. State, AIR 1952 SC 165**_ **,** _**Partap v. State of Uttar Pradesh, (1976) 2 SCC 798**_ relied upon) 24. In _**Salim Zia v. State of Uttar Pradesh, (1979)**_ _**2 SCC 648**_ , the Honourable Supreme Court considered the extent of burden on the accused to establish plea of self-defence and held that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of prosecution witnesses or by _Crl.A. 634 of 2015_ 27 adducing defence. In _**Yogendra Moraji v. State of**_ _**Gujarat, (1980) 2 SCC 218**_ , the Honourable Supreme Court considered as to when the right of private defence of body accrues and when it extends to voluntarily causing death and held that the initial burden on the prosecution to establish beyond reasonable doubt the charge against the accused and the onus thereafter shifts on the accused to rebut the presumption regarding complicity of the accused by proving by preponderance of probability that the offence was committed in exercise of the exceptional right of private defence. It is also held that even if accused fails to discharge his onus, circumstances of the case may cast doubt on the charge against him and on the facts held that the right of private defence of body accrued to the accused, but he exceeded his right by causing death of the deceased. ## 25. In _**Abdul Kadir v. State of Assam, 1985 (Supp)**_ _**SCC 603**_ , the Honourable Supreme Court was considering the right of private defence of the accused when the deceased person and their men armed with sharp cutting _Crl.A. 634 of 2015_ 28 instruments trespassed into the field of accused persons and when their attempt to harvest the standing crop was resisted by the accused persons, grievous injuries were inflicted by the deceased party on vital parts of the body of two accused. It was held that the accused were justified in exercising their right of private defence of body and property by inflicting grievous hurt, that caused their death. 26. The learned Counsel for the appellant also argues that the injuries sustained by the appellant has not been explained properly by the prosecution. In ## _**Lakshmi Singh v. State of Bihar, AIR 1976 SCC 2263**_ , it was held that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution case. In ## _**Bishna @ Bhiswadeb Mahato v. State of West Bengal,**_ _**(2005) 12 SCC 657**_ , the Honourable Supreme Court has considered the right of private defence of the accused _Crl.A. 634 of 2015_ 29 and it was held that non-explanation of the injuries suffered by the accused probabilises the defence version that the prosecution side attacked first, and when injuries were sustained by both sides and when both the parties suppressed the genesis of the incident, or were coming out the partial truth, the prosecution may fail. It was also held that in exercising the right of private defence, the plea need not be taken specifically and the Court on the basis of materials on record can come to such a conclusion and may act upon despite some other plea being raised, even though the burden lies on the person, who sets the plea of self-defence. In _**Asokan v. State of Kerala, 2017 (2) KHC 669**_ , a Division Bench of this Court has held that non-explanation about the injuries on accused is an important circumstance and the omission of the same assumes importance when evidence consists of interested or inimical witnesses. ## 27. In _**Krishnan v. State of Tamil Nadu, (2006) 11**_ _**SCC 304**_ , the Honourable Supreme Court while considering the plea of private defence and the burden of proof _Crl.A. 634 of 2015_ 30 held that the burden is on the accused, but such burden is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability. It is further held that such plea can be established either by letting in defence evidence or from the prosecution evidence itself, but cannot be based on mere speculation or surmises. ## 28. In _**Surendra v. State of Maharashtra, (2006) 11**_ _**SCC 434,**_ the Honourable Supreme Court had opportunity to consider the right of private defence and the burden of proof and held that though injury sustained by the accused need not be explained in all circumstances, but a different standard would be applied in a case where a specific plea of right of private defence has been raised and it is further held that in the event, prosecution discharges its primary burden of proof, the onus would shift on the accused but the same would not mean that the burden can be discharged only by examining defence witnesses and even in the absence of _Crl.A. 634 of 2015_ 31 specific plea being raised courts have to see as to whether the plea of exercise of private defence was probable in the facts and circumstances of the case. 29. _Per contra_ , the learned Public Prosecutor, Sri.S.U.Nazar, argues that the prosecution has succeeded in establishing the guilt of the appellant beyond any reasonable doubt. It is also submitted that going by the nature of the injuries sustained by the accused and the deceased, it is adequately clear that the accused had the intention to cause death, squarely coming within the definition of 'murder' under Section 300. Regarding the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence, the learned Public Prosecutor submits that the injuries has been explained by the prosecution and PW1 has testified that the accused poured the liquid on himself and went to the police station with MO1 knife. That is the only injury, which is sustained by the accused and those were according to his own documents produced as Ext.D2 series indicates that it was superficial burns. The explanation given by the _Crl.A. 634 of 2015_ 32 accused to the query put to him under Section 313, Cr.P.C. and while examined as DW1 is that the deceased was the aggressor and that he was the one, who poured the liquid on the deceased, does not stand to reason and there is no corroboration of that version of the accused. The learned Prosecutor would argue that even taking into consideration the preponderance of probabilities, which alone is the burden of the accused to prove the case of self-defence, his case would not stand legal scrutiny. 30. In _**Hare Krishna Singh & others v. State of**_ _**Bihar, AIR 1988 SC 863**_ , it was held that if the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. It was also held that when the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution _Crl.A. 634 of 2015_ 33 to again explain how and in what circumstances injuries have been inflicted on the person of the accused. The learned Public Prosecutor would argue that even applying the standards in the above cited decision, the prosecution is not bound to prove how the injury was caused to the accused. But yet the prosecution has, by way of testimony of PW1, established beyond reasonable doubt that the accused was the perpetrator of the crime and about how he self-inflicted his injuries. 31. The learned Public Prosecutor, while meeting the case of private defence set up by the accused relies on the decision _**Shriram v. State of M.P., (2004)**_ _**9 SCC 292,**_ where the Honourable Supreme Court has held as follows: “ _A plea of right of private defence cannot be based on surmises and speculation. The court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially a finding of fact. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. The injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstance whether the accused had time to have recourse to public authorities are all_ _Crl.A. 634 of 2015_ 34 _relevant factors to be considered, while determining whether the right of private defence is available or not. Whether the accused may have a chance to inflict severe and mortal injury on the aggressor is not relevant.”_ 32. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger which is not self created. The necessity would be either real or apparent (See ## _**Sikandar Singh & others v. State of Bihar, 2010 KHC**_ _**4444: AIR 2010 SC 3580**_ ). Injuries sustained 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 reach the public authorities to save himself, are all relevant factors for consideration (See _**Darshan Singh v. State of**_ _**Punjab, (2010) 2 SCC 333**_ ). 33. A Division Bench of this Court in _**Abdul**_ _**Rasheed v. State of Kerala, 2013 (1) KHC 418**_ , held as thus: _“17. On a joint reading of Sections 96, 97, 99, 100 and 351 IPC, it is clear that if the Court has to extent the benefit under Section 100 IPC to an accused, who voluntary_ _Crl.A. 634 of 2015_ 35 _caused death to another, the following facts must be established: i) that deceased was the assailant, ii) that deceased committed the offence of “assault”, iii) that such assault by the deceased occasioned in exercise of private defence by accused and iv) that such assault committed by the deceased was such as may reasonably cause apprehension that death or grievous hurt would be the consequence, had he not exercised his right of private defence.”_ 34. There is no doubt that self-preservation is a basic human instinct and is duly recognised by criminal jurisprudence of all civilised countries. But such a right of private defence is available only to the one, who is suddenly confronted with the necessity of averting an impending danger and not creation of his own. It is true that the burden on the accused is only to the extent of preponderance of probabilities and he cannot be called upon to prove his right of private defence beyond reasonable doubt, which is the obligation of prosecution. A mere reasonable apprehension is enough for the accused to exercise his right of private defence. Even actual commission of the offence by the aggressor, who was the victim, may not be necessary for the accused to exercise his right _Crl.A. 634 of 2015_ 36 of private defence. But he must be able to prove that he reasonably apprehended that he would be attacked or that his life is in danger. The accused need not even plead self-defence as is held by a plethora of decisions cited above. His evidence and the evidence of witnesses adduced before the Court for the prosecution, if indicates towards the possibility of a reasonable apprehension on the part of the accused, that would be sufficient. It has been held by the Honourable Supreme Court in _**Buta Singh v. State of Punjab, (1991) 2 SCC 612**_ , that a person is apprehending death or bodily injury cannot weigh in “golden scales” on the spur of the moment and in the heat of circumstances, the number of injuries required to disarm the assailants who are armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use only so much force in retaliation commensurate with the danger apprehended to him, where assault is imminent by use of force. _Crl.A. 634 of 2015_ 37 35. Now, we would proceed to examine the evidence adduced in this case to find out whether there was any justifiable reason and reasonable apprehension for the appellant to exercise his right of private defence. 36. That in fact is the only question that arises for consideration in this case. Because from the overwhelming evidence produced and the fact that the accused himself with MO1 knife had surrendered before the police indicates that he was the perpetrator of the act, which led to the death of PW1's son. 37. In _**Yogendra Morarji v. State of Gujarat, AIR**_ _**1980 SC 660**_ , the only consideration before the Honourable Supreme Court was whether the accused therein was entitled to exercise the right of selfdefence and it is observed by the Honourable Supreme Court that this right is not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence (Section 99). In other words, the injury which is inflicted by the person exercising the right should be commensurate with _Crl.A. 634 of 2015_ 38 the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising a right in good faith weigh “with golden scales” and what maximum amount of force is necessary to keep within the right. 38. Applying all these decisions to the facts in hand, we find that the accused puts up a case that he was threatened by the deceased and few of his friends, none of whom were identified, and there is not a single witness, who speaks regarding such a confrontation between the accused on one side and the deceased and few of his supporters on the other. Admittedly, none of them, if at all there were any, as stated by the appellant, were armed. The case of the appellant that MO1 was handed over to the deceased by PW1 is not substantiated by anyone. The prosecution case as put forth by the PW1, PW2 and PW3 would indicate that the knife was wielded by the appellant himself. Phenol, used for the initial assault by the appellant, was also taken from his motor cycle. It may be true that the source from where he had acquired the liquid is not _Crl.A. 634 of 2015_ 39 probably proved by the prosecution, but it is clear that it was the appellant, who had initiated the assault in attacking the deceased and PW1. He was the aggressor, is proved beyond doubt. He cannot therefore take advantage of his self creation and seek refuge of the exception of self-defence. 39. Even if the case of defence that the wife of the appellant was brutally raped by the deceased is taken to be true, there is no sudden provocation at the specific point in time. Because the parties had a discussion before PW6, and thereafter, in front of PW5 and drew up on agreement to settle their disputes on payment of compensation and disperse peacefully. The appellant did not confront any instigation on the part of the deceased so as to get provoked for the assault. It also cannot be believed that the appellant was able to inflict 19 injuries, 14 of which were stab injuries on the deceased, in the presence of so many friends of the deceased, who were there to assist him, and in an intimidating mood. The case of the appellant that he was confronted by a gang led by the deceased, would _Crl.A. 634 of 2015_ 40 therefore, fall to the ground. It is also not believable that the appellant could have overpowered and snatched the knife from the hands of the deceased, who was a fit, strong and trained policeman. In case it was the deceased, who was in possession of MO1, the accused would definitely have sustained some injuries with that knife, before he unarmed him. There is not a scratch on the body of the appellant, apart from the self inflicted burn injuries he had sustained due to the pouring of phenol. In all the above cited decisions relied upon by both sides would indicate that for the accused to successfully plead and put forth a case of self-defence, he has to prove that he was challenged and had a real apprehension of threat in his mind about being attacked by the deceased or someone supporting him, and that they were wielding dangerous weapons, which they could use against the appellant. In the instant case, there is not an iota of evidence about a reasonable apprehension in the mind of the appellant. It is also not possible that the appellant could have succeeded in keeping at bay all those _Crl.A. 634 of 2015_ 41 persons in the gang and could have attacked the deceased, all by himself. The appellant's case of self-defence is highly improbable. 40. The learned trial Judge was justified in not accepting the case of the appellant and rightly found him guilty of committing murder. We find no reason to interfere with the finding of the learned Sessions Judge. The appeal is therefore dismissed, and the sentence confirmed. ## **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** **Sd/-** **ASHOK MENON** _dkr_ **JUDGE**