Kuppusamier vs Emperor

Waller, J.—The appellant has been convicted of having caused the deaths of three men and grievous hurt to six others. He admits that, in the

course of a riot, he fired his gun seven times, but pleads that he did so in the lawful exercise of his right of private defence. The Sessions Judge,

though he disbelieved every word of the evidence of eyewitnesses relied on by the prosecution, rejected the appellant''s plea as well.

The riot took place in a village called Angambakam, which is inhabited mainly toy Mudaliars and Adidravidas. The Mudaliars were split into two

factions, to one of which, the smaller, the Adidravidas attached themselves. This led to the larger faction deciding to get rid of the Adidravidas and

to import labourers into the village from outside. As a result, the unfortunate Adidravidas were deprived of their means of livelihood and many of

them had to emigrate. Matters came to a head in August last. On the 10th of that month a crowd of Adidravidas attacked the house of the leader

of the opposite faction. This occurred in the afternoon and it is perfectly clear that the Mudaliars, the very same night, collected a large crowd-

some of whom were imported rowdies- and set out to attack the Pallachari, which they wrecked. The appellant is an ex-sepoy, who had taken up

the cause of the Adidravidas and was, doubtless, peculiarly obnoxious to the Mudaliars for that reason. He was be seiged in his house by the

crowd, at which he fired seven times till it dispersed. Immediately afterwards he sent telegrams to the authorities, which - strangely enough-the

prosecution has not produced. He was quite ready to tell his story when he was arrested, but was not allowed to do so till 22nd August. The

Sessions Judge came to the conclusion that it was not entirely true and that he must have used his gun rather in a spirit is revenge than as a means

of defence. In this conclusion I cannot agree. The various statements made by the appellant have impressed me very favourably and they present,

in my opinion, every appearance of truth.

The evidence of P. Ws. 17 to 27, I can dismiss at once as obviously and flagrantly false. Their story briefly amounts to this-that the appellant

without any provocation or cause walked about the Cheri taking pot shots at a number of peaceful citizens, who either were employed on their

lawful occupations or had come to see what the trouble was about. The truth is, of course, that a large crowd of Mudaliars and hired rowdies

came to the Cheri, armed with sticks and knives, in order to wreak vengeance on the Adidravidas. The appellant bolted himself into his house,

which was attacked, and fired at the crowd through a small window. The Sessions Judge thinks that, having a gun and a large supply of ammunition

and being inside a house behind locked doors, the appellant could have exercised a cool and calm judgment as to the precise amount of force he

was entitled to use in order to defend himself effectively. One or two shots, aimed low, would, he considered, have been enough for that purpose.

Criticizm of this sort is easy in the detached atmosphere of a Court, but the appellant was in a very different position. He was facing in the darkness

an armed and hostile crowd. As a leader and protector of the Adidravidas he was particularly obnoxious to them. They were attacking his house

and trying to break into it. If they succeeded, he had every reason to suppose that he would be roughly handled or even murdered. Under the

circumstances, he was quite justified in firing at them and in continuing to fire, if the attack went on. To shoot so as to maim and not to kill was to

invite further and still more bitter and determined attack. His plea that he was exercising his lawful right of private defence has, in my opinion, been

completely made out. Every word of the evidence against him is false and I accept his story as substantially true. In the result, the convictions and

sentences must be set aside and I direct that he be set at liberty.

Anantakrishna Ayyar, J.

I agree. I should like to add a few words with reference to two points on which I think the learned Sessions Judge has gone wrong.

In deciding against the plea of private defence put forward by accused 1-the appellant before us, the learned Sessions Judge remarked that the

crowd matter of fact did not commit any act of incendiarism in the course of their raid anywhere that night in the Cheri (para. 38); and also that the

rioters did not inflict severe injury on any Adidravidas that night (para. 44). Therefore, the learned Sessions Judge argues, there was no justification

for exercising the right of self-defence. In this, I think, the learned Judge was wrong. It is after going through the evidence in the case that the

learned Judge was able to find that the rioters did not commit any act of incendiarism that night and also that they did not inflict severe injury on any

Adidravidas that night. But the accused was absent from the village that night and returned to his house only early that morning. There is no

evidence that he knew then what the learned Judge finds now; so that to impute knowledge to the accused of circumstances proved to the

satisfaction of the learned Judge now, but of which the accused had no knowledge at the time, and then say that the accused ought not to have

exercised his right of private defence is, I think, erroneous. That is approaching the question from an erroneous standpoint. The accused saw in

front of his house a large crowd armed with knives, sticks, torches, etc. In the words of the learned Sessions Judge:

It is not improbable that the rioters them-selves committed all that devastation and were seen by him (accused 1,) doing so, when ha got into the

house on his return from Pinayur and found his wife and son absent. On seeing his valuable properties being destroyed he would have been

naturally thrown into a frenzy of indignation; and it is likely that at the spur of the moment he seized his gun and opened fire on the rioters, and

continued firing until some of them fell down injured and the rest fled away.

The question is whether having regard to the facts noticed by him and the circumstances in which he was placed at the time, he was justified in

exercising the right of private defence. Facts unknown to him at the time, but proved before the Court at the trial, should not, in such

circumstances, be taken into account and made the basis for finding against the plea of self-defence.

The other point which I should like to notice is this. In para. 48 of his judgment the learned Sessions Judge remarked that all the assessors

expressed opinion in favour of the accused (two of the assessors were Christians, one a Brahmin and the fourth a Vellala). All the assessors were

of the unanimous opinion that:

Accused 1 did the acts in self defence and is hence not guilty.

The Judge remarked they do not appear to have followed the law closely. But has the learned Judge correctly followed the law on the point? In

para. 47, he states:

Accused 1 could have exercised a calm and cool judgment, sheltered as ha was by the walls of his house, and weighed even in golden scales the

amount of violence that he should put forth to avert such harm, actual or potential, as was threatened against his person or property.

I need not recapitulate the acts done by the rioters, which have been fully described in the judgment of my learned brother. The learned Sessions

Judge himself finds that a rowdy crowd specially engaged for the rioting was seen at close quarters just in front of the accused''s house, and that:

the persons who fell victims to the shots had given the accused grave provocation by destroying his valuable properties and by making his wife and

sons fly away from the house by the back door.(Para. 49)

The poking at him of a stick through the window is found in paras 40 and 44. In these circumstances, to say that the accused should have

exercised a calm and cool judgment"" and that his act should be ""weighed in golden scales"", is due (I think) to misunderstanding of the law on the

point and virtually to place greater restrictions on the right of private defence than the law imposes. The law does not require that a person placed

in such circumstances should weigh the arguments for and against, ""in golden scales."" It would be unnatural to expect him to do so, and the law (I

think) in fact does; not require any such thing from such person. The question to be asked is not; what a perfectly cool bystander would think

absolutely necessary, but whether there was reasonable apprehension of danger to life or property on the part of; the accused having regard to all

the circumstances; and allowance should be made for one who with the instinct of self-preservation strong upon him pursues his defence a little

further than might appear to be absolutely necessary to a cool bystander. In Halsbury''s Laws of England, Vol. 9, p. 587, para. 1186, it is stated

as. follows:

The owner of a dwelling house, or any of his servants or lodgers, or any other person within the house, is justified in using force towards a parson

who is manifestly attempting to burn it, or to commit a burglary there, or to invade and enter it by violence; if the owner etc. in the use of such force

kills such person, he does not commit any crime. A person lawfully defending himself or his habitation is not bound to retreat or to give way to the

aggressor before killing him.

This would seam to be the law under the Indian Penal Code also. I think that the circumstances proved in this case amply justified in my

opinion the apprehensions in the mind of the accused and his acts at the time, though it is to be greatly regretted that three lives were lost: see also

Alingal Kanhinayan v. Emperor [1905] 28 Mad. 454 and Bagh Singh v. Emperor AIR 1925 Lah. 49 If the learned Judge had not been under a

misapprehension as regards the law, it is very likely that he would have agreed with the assessors in their opinion.

I agree with my learned brother that the appeal should be allowed and the conviction of the appellant quashed.