Joseph vs State of Kerala

Sankaran, J.—The accused in Sessions Case No. 30/1956 on the file of the Additional Sessions Court at Kottayam is the appellant. He stood his trial for the offences punishable under sections 302 and 324 of the Indian Penal Code. While admitting the commission of the acts attributed to him by the prosecution, the accused set up a plea of private defense. As a result of the trial of the case, the learned Sessions Judge came to the conclusion that the accused was acting in the exercise of the right of private defense of 10 own person, but that he has exceeded that right in having inflicted a fatal stab on deceased Uthuppu Mathew and in having caused hurt to his companion P. W. 1. On the strength of such a finding the learned Additional Sessions Judge convicted the accused of the offences punishable under sections 304 and 324 and sentenced him to undergo rigorous imprisonment for three years under the first count and for three months under the second count. It was also directed that these sentences are to run consecutively. The occurrence in this case took place at about 5 P. M. on 28-9-1952 at the north western portion of Madavanakunnu Purayidom in Ezhjcherykara of Ramapuram Pakuthy, Meenachil Taluk, The accused, along with P. Ws. 3, 7, 8 and D. W. 1 and others, had assembled there for the purpose of paying cards. P. W. 1 and deceased Uthuppu Mathew of Andukunnd of Gnavallil, Lalam Pakuthy, who were going about in search of a cow belonging to P. W. l''s cousin, also came to the spot. P. W. 3 went and, bought few pack of cards with the money supplied by P. W. 8. The party sat down a circle to play and before commencing the play there was a. suggestion that each of these players should contribute one anna towards the pace of the cards. P. W. 8 was not agreeable to receive 6 annas as the price of the cards and said that the players should contribute 2 annas each. At this stage Uthuppu Mathew said that he would himself pay up the full price of the cards,. Feeling humiliated at this suggestion, P. W. 8 protested against it. This was followed by some exchange of words between himself and Uthuppu Mathew, The latter got will and went near P. W. 8 and dragged him by the head and also gage a kick on the back of his neck. Seeing this, the accused called out to Uthuppu Mathew not to pick up any quarrel. Uthuppu Mathew could not brook such interference and so he turned against the accused and gave a slap on his cheek asking him what authority he had to interfere in a matter concerning himself and P. W. 8. The accused returned the blow. While Mathew and the accused were thus exchanging blows, P. W. 1 caught hold of the accused from behind. While the accused was thus in the grip of P. W. 1, Uthuppu Mathew again beat and fisted him on his face and chest. P. W. 3 interceded and caught hold of Mathew and thus prevented him from inflicting further blows on the accused. A few minutes later P. W. 1 released his hold on the accused. Similarly, P. W. 3 released his hold on Uthuppu Mathew. Soon after getting himself released from the clutches of P. W 1, the accused took out his knife arid rushed towards Uthuppu Mathew and inflicted a stab on the left side of this head just above the ear. P. W. 1 tried to intercede and the accused aimed a stab at him also. In the course of warding off that stab, P. W. 1 sustained an injury on his left fore-arm. The accused then ran away towards the east. This is the prosecution version of the occurrence in this case. Regarding the earlier part of this story i.e., up to the stage when the accused and Uthuppu Mathew were caught hold of by P. W. 1 and P. W. 3 respectively, the statement of the accused agrees with the prosecution version. The defense version differs from the prosecution version, only in respect of the circumstances under which the accused and Uthuppu Mathew were released by P. W. 1 and P. W. 3 and the situation in which the abused happened to use his knife against Mathew and P. W. 1. This aspect of the case will be dealt with while considering the plea of private defense set up by the accused.

Since it is not disputed in this case that Uthuppu Mathew and P. W. 1 sustained wounds at the hands of the accused at the time and place mentioned by the prosecution and that as a result of the stab wounds sustained by Mathew on the left side of the head he died at about noon on the next day it is not necessary to discuss in detail the evidence relating to these matters. P. Ws. 1, 3, 7, 8 and 12 and D. W. 1 are the witnesses who were present at the Madavanakunnu Purayidom where the occurrence took place at about 5 p. m. on 28-9-1952. All of them swear that the stab wounds sustained by Uthuppu Mathew and P. W. 1 were inflicted by the accused with his own knife. These witnesses have also stated that Mathew died on the next day as a result of the injuries sustained on his head. Soon after the occurrence, he was removed to the Government Hospital at Palai where first-aid was rendered to him. Since his condition was found to be serious, he was removed from the Government Hospital at Palai where the first-aid was rendered to him to the District Hospital at Kottayam on the same evening. From there he was sent to the General Hospital as Trivandrum or better medical treatment. It was there that he died at 12-50 p. m. on 29-9-1952. The Medical Officer who treated Mathew in the General Hospital has been examined as P. W. 4 and it was he who conducted the autopsy on the dead body of Mathew and issued the autopsy certificate Ext. P. 7. The report of the inquest held over the dead body of Mathew has been proved and marked as Ext. P. 4. These documents and the evidence of P. Ws. 1, 2, 3, 7, 8 and 12 and D. W. 1 conclusively prove that Utbuppu Mathew died at 12-50 p. m. on 29-9-1952 as a result of the stab wound which he had sustained on his head. Of these witnesses, P. W. 2 is the direct brother of Mathew, while the other witnesses are close neighbors to his place of residence.

The stab Wounds sustained by Uthuppu Mathew are described in Ext. P. 16, the wound certificate issued by the Medical Officer, P. W. 9, who had rendered first-aid to the victim when he was taken to the Government hospital at Palai immediately after the occurrence. These injuries are also described in Ext. P. 7, the autopsy certificate issued by P. W. 4. Three incised wounds are described in both these documents. In Ext. P. 4 these wounds are described as follows:

(1) a gaping incised wound 1�" long, and 1/3" broad at its middle and penetrating into the cranial cavity and situated on the left side of the head 2�" above the left pinna of the ear, over the region of the parietal bone;

(2) An incised wound 1/4"X 1/10" and skin-deep under the chin, just to the right of the medial line;

(3) A flat incised wound 1"X 3/4" with the skin sliced off at the front of the left forearm 1�" above the wrist exposing the subcutaneous tissue.

From the situation of these injuries it would appear that these three injuries wear caused in the course of the same stab followed by the drawing out of the knife from the first wound. The direct evidence given by the witnesses swearing to have seen the occurrence is also to the effect that only one stab was inflicted by the accused on Uthuppu Mathew. From Ext. P. 4 it is seen that injury No. 1 had pierced into the skull bone and also into the brain matter underneath. Brain substance was protruding through the rent in the membrane under injury No 1. According to P. W. 4 this was fatal injury. According to the witnesses who saw the occurrence, the victim became unconscious soon after sustaining this injury and that he never regained consciousness thereafter. According to P. W. 4 the cause of death was "coma, as the result of cerebral compression from the cerebral laceration and the resulting oedema as a consequence of the penetrating craniocerebral injury". Thus it is clear that the stab wounds sustained by Mathew on the left side of his head was a fatal injury and that his death was brought about by that injury. As for P. W. 1, the incised wound sustained by him on his left forearm is described in Ext. P. 17 the wound certificate issued by P. W. 9. It was an incised vertical wound 1�"X1/2" and skin-deep and, was on the back of the middle third of the left fore-arm. It was a trivial injury for which P. W. 1 was treated only as out patient as admitted by him.

The direct evidence regarding the occurrence in this case is given by P. Ws. 1, 3, 7, 8 and 12 and also by D. W. 1 in addition to the witnesses proposed to be examined on the prosecution side as per the charge-sheet filed by the police, the names of a few other persons were also given in the same document as persons who had witnessed the occurrence and D. W. 1 is one such person. There can therefore be no doubt that D. W. 1 is equally competent just as the witnesses examined by the prosecution, to speak to the details of the occurrence as it developed. Even though all these witnesses agree in their version regarding the first stage of the occurrence, there is material difference between the version given by P. Ws. 1 and 7 on the one side, and that given by P. Ws. 3, 8 and 12 and D. W. 1 on the other side, as to the second stage of the occurrence. From the version on which all these witnesses agree, it is clear that deceased Uthuppu Mathew was the aggressor and that it was his improvised and aggressive acts that brought about the tragedy. Himself along with P. W. 1 arrived at the scene when the accused, P. Ws. 3, 8, 12 and others were getting ready to play cards. Regarding the contributions to be made by the players towards the price of the cards purchased by P. W. 8, there arose some dispute between him and P. W. 7. There was a suggestion that each player should contribute one anna. P. W. 8 was not prepared to accept this contribution and he insisted that each player should contribute 2 annas. At that stage Uthuppu Mathew volunteered that he would himself pay the entire price of the cards to P. W. 8. Feeling that this was an insulting offer, P. W. 8 retorted saying that he had not brought the cards for sale. This was followed by an exchange of words between himself and Uthuppu Mathew. The uncalled for interference of Uthuppu Mathew took an aggressive turn and he pulled P. W. 8 by the hand and gave a kick on the back of his neck. At this stage the accused approached Mathew and appealed to him not to create any trouble. Mathew who has playing the role of bully, did not relish the accused''s attempted conciliation and so turned against him and gave a slap on his cheek. The accused returned the blow but Mathew continued his attack on the accused. While such attack was in progress, P. W. 1. caught hold of the accused from behind and held him fast. Finding that Uthuppu Mathew was again attacking the accused, P. W. 3 appealed to him to desist from such attack and then caught hold of him and separated him from the accused. So far all the witnessess swearing to the occurrence agree. But they differ in their versions as to what transpired subsequently. According to P. Ws. 1 and 7. P. W. 1 released his hold on the accused after keeping him in custody for a few minutes and that this was followed by the release of Uthuppu Mathew by P. W. 3. It is also stated that the accused quietly sat down and took out his knife and then rushed forward towards Mathew and inflicted a stab on the left side of his head. Seeing this P. W. 1 is stated to have approached the accused appealing to him not to stab Mathew. P. Ws. 1 to 7 have further stated that the accused turned against P. W. 1 and aimed a stab at him which hit P. W. 1 on his left hand when he tried to ward off the stab. As against such a version given by P. Ws. 1 and 7, an entirely different version is sworn to by P. Ws. 3, 8, 12 and D. W. 1 as to the circumstances under which Mathew and P. W. 1 happened to sustain stabs at the hands of the accused. According to P. Ws. 3, 8, 12 and D. W. 1, Uthuppu Mathew had inflicted a series of fists and blows on the face and on the chest of the accused even while he was in the grip of P. W. 1 and the accused had already become thoroughly exhausted by the time P. W. 3 succeeded in catching hold of Mathew and separating him from the accused. When P. W. 1 released his hold on the accused, he was so weak that he could not stand erect but had to squat on the floor. As for Uthuppu Mathew, it was not a case of his being voluntarily released by P. W. 3. According to this witness, Mathew was trying to get out of his control and that by the time of the release of the accused by P. W. 1, Mathew succeeded in wriggling out from the hold of P. W. 3. On thus becoming free, Mathew again went up to the accused to continue the attack on him. It was at that stage that the accused used his knife against Mathew according to the version given by P. W. 3, 8 and 12 and D. W. l. These details regarding the latter part of the occurrence were brought out in the cross-examination of these witnesses. Such-details as sworn to by these witnesses have been discarded by the learned Sessions Judge mainly for the reason that they had not sworn to these details when they were examined before the committing Magistrate or in their chief-examination before the Sessions Court, After thus discarding the details brought out in the cross-examination of these, witnesses, the learned Sessions Judge has chosen to believe and accept only so much of their evidence as is contained in their chief-examination and which is in agreement with the version given by P. Ws. 1 and 7. It is highly objectionable and unsafe to adopt such a compartment system in the appreciation of the evidence of, a witness. It is wrong to discard altogether the facts elicited in the cross-examination of a witness and to accept as true the version given in the chief examination, even when such version is inconsistent with the facts brought out in the cross-examination. To do so, would be to defeat the very purpose of the cross-examination. The primary object of the cross-examination is to test the truth and correctness of the statements made in the chief examination. The evidence of a witness must be read as a whole and his credibility has to be decided after a due consideration of the entire evidence. So far as the evidence of P. Ws. 3, 8 and 12 is concerned, it cannot be said that the details spoken to by them in their cross-examination are at variance with the version given by them in their chief examination. In their chief examination the Prosecutor had elicited only such facts which are in support of the prosecution version of the case. Since the witnesses were not asked to give a full narration of details regarding the occurrence but were only answering the questions put to them in their chief examination, they could not have spoken to the details on which they were not questioned. This remark would hold good in respect of the evidence given by them in the committing Court also. But when they were fully cross-examined in the Sessions Court, the defense counsel was able to elicit fuller details regarding the occurrence. The fact that such details were elicited only at that stage cannot be a reason to discard those details as false. Nothing has been brought out in the evidence of these witnesses to justify the inference that they are particularly interested in the accused and have therefore given false version in their cross-examination to support the accused''s plea of private defense. On the other hand, it is seen from the evidence of P. Ws. 1 and 7 that these two witnesses and deceased Mathew are related to one another P. W. 1 and Mathew were going about in search of a cow belonging to a cousin of theirs and it was then that they met P. W.7 and others assembled at the Madavanakunnu Purayidom for the purpose of playing cards. There can be no doubt that P. Ws. 1 and 7 have an interest in, swearing against the accused who had inflicted stabs on Mathew and P. W. 1. The version given by P. W. 1 in his first information statement Ext. P. 1 is inconsistent with the evidence given by him at the trial of the case. In Ext. P. 1 he has suppressed material facts relating to the occurrence by not making any mention of the aggressive acts of Uthuppu Mathew, in first attacking P. W. 8 followed by the attack on the accused. On the other hand, the version given in Ext. P. 1 is to the effect that there was only an exchange of abuse between Mathew and the accused and that such abuse was followed by the infliction of the stabs on Mathew by the accused. The fact that P. W. 1 had given an entirely false version when he gave the statement Ext. P. 1, is by itself a sufficient reason to discard his evidence as unreliable. P. W. 7 who is interested in supporting P. W. 1, has also given a, version consistent with the version given by P. W. 1. The version given by these two witnesses is also unnatural and improbable. Uthuppu Mathew who was undoubtedly the aggressor and who was guilty of unprovoked attacks on P. W. 8 and on the accused, would not have kept quiet when he got himself released from the clutches of P.W. 8. It has clearly come out from the evidence on record that even when the accused was in the grip of P. W. 1, Mathew continued his attack on the accused. The wound certificate Ext. P. 18 describes the several injuries that had thus been inflicted on the accused. Of the six injuries described in Ext. P. 18 the first was an abrasion on his face below the outer angle of the left eye. The second was an inflamed abrasion on the upper lip. The third was a contusion on the lower lip. The other three injuries were abrasions on the right little finger, on the. middle finger and on the left foot. These injuries clearly support the version given by P. Ws. 3, 8 and 12 as to the serious attacks inflicted on the accused by Uthuppu Mathew. The version given by these witnesses that the accused had become thoroughly exhausted by such attacks on him, can therefore be believed. The version that Mathew had wriggled out from the clutches of P. W. 8 and had again attempted to attack the accused, also appears to be natural and probable. Such an attitude is quite consistent with the aggressive mood adopted by Uthuppu Mathew from the very start. Thus it is clear that it was not a case of the accused using his knife against Mathew when he was standing quiet in a passive mood. On the other hand, the accused was forced to resort to the use of his knife when Mathew was attempting to attack him again after freeing himself from the clutches of P. W. 8. The situation of the stab wounds found on the person of Mathew also indicates that he must have sustained these injuries at the hands of the accused at a time when he was engaged in attacking the accused. If Mathew was standing in a quiet mood while the accused inflicted the stab on him, the probability is that the stab would have been inflicted on some other vulnerable part of his body instead of aiming the stab at his head. The real situation in which the accused 1 used his knife against Mathew appears to be as described by P. Ws. 3, 8 and 12 and D. W. 1, and not as stated by P. Ws. 1 and 7. The details regarding the last stage of the occurrence have been suppressed by P. Ws. 1 and 7 for the obvious reason that the disclosure of such details would support the defense plea of private defense. The other witnesses who had no particular reason to be biased in favor of the prosecution or in favor of the defense have given a full and exhaustive account of the situation which compelled the accused to resort to the use of his knife against the aggressors, and we accept the version given by these witnesses as the true and correct version of the occurrence.

The only other question for consideration is whether the situation in which the accused was placed justified the infliction of the stab wounds of Mathew and P. W. 1. It has been clearly established by the prosecution evidence itself that Mathew was the aggressor and that it was he who started the quarrel by first Attacking P. W. 8 by kicking him on the back of his head. This was followed by the attack on the accused who tried to pacify Mathew and to secure peace. It was in the course of such attacks on the accused that P. W. 1 caught hold of the accused from behind. The act of P. W. 1 cannot be taken to have been intended to secure peace. If that was his intention, he should have caught hold of Mathew who was the aggressor. It was also to be remembered that Mathew was a relation and friend of P. W. 1 and as such it would have been easy for this witness to persuade Mathew to desist from his attacks. On have other hand, what P. W. 1 did was to catch hold of the accused who was the victim of the wanton attacks of Mathew and to keep him under control to give a free hand in continuing his attacks on the accused. Mathew made full use of the opportunity by beating and fisting on the face and chest of the accused until the victim had become thoroughly exhausted. It was then that P. W. 1 released his hold on the accused who, being unable to stand erect, had to sit on the ground. Even under such a situation, Mathew was not prepared to leave the accused alone and so he forcibly got himself released from the grip of P. W. 3 and again started the attacks on the accused. P. W. 1 was standing by ready to render any help to Mathew. In such a situation the accused could naturally and legitimately apprehend grievous hurt or even death at the hands of Mathew. The accused having become thoroughly exhausted as a result of the blows and fists which he had received, could not hope to successfully resist the further attacks on him without the aid of an effective weapon. He had his knife with him and he made use of it against his aggressor Mathew by inflicting a stab on him which happened to hit on the left side of his head. In inflicting such a stab, the accused was completely within his right of private defense of his own person. Merely on account of the fact that the stab proved fatal, it cannot be said that the accused had exceeded his right of private defense in inflicting that stab. It is significant to note that the accused did not inflict any more serious stabs on Mathew. The accused only wanted to secure his safety and at the earliest available opportunity he ran away from the spot. But before he could run away he was faced by P. W. 1 also who was approaching him once again. It has to be remembered that it was this witness who had kept the accused within his grip and had thus enabled Mathew to freely attack him at the earlier stage of the occurrence. When P. W. 1 again approached the accused, his natural impulse and apprehension would have been that P. W. 1 would again keep him in custody and help Mathew to inflict more injuries on him. The accused was therefore justified in using the knife against P. W. 1 also, so that the witness may not again -catch hold of the accused and thus help Mathew to attack him. In thus using the knife against P. W. 1, a trivial injury alone was caused on his hand and hence it cannot be said that in inflicting such an injury on P. W. 1 the accused had exceeded his right of private defense. It follows, therefore, that in the situation in which the accused was placed, he was fully justified in inflicting the injuries found on Mathew and on P. W. 1 by using his knife against them for the purpose of securing the safety of his own person, and that he has not exceeded his right of private defense. In having inflicted such injuries, he has not committed any offence punishable under law. In the result this appeal is allowed and the convictions entered against the appellant-accused and the sentences awarded to him by the learned Sessions Judge are quashed, and the accused is acquitted of the offences charged against him. His bail bonds are cancelled and he is set at liberty.