Mohammad vs State of Kerala

Sankaran, J.—The accused in Sessions Case No. 62/1956 on the file of the Sessions Court at Kozhikode is the appellant. He was tried for the offence of murder punishable u/s 302 of the Indian Penal Code. A quarrel took place between himself and Immature Maiden, the husband of P.W. 1, at about 2 P.M. on 2-9-1956 and in the course of that quarrel the accused inflicted two stabs on Maiden who died at the spot soon after sustaining these stab wounds. The accused, while conceding that he used the knife against Maiden, put forward the plea of private defense and maintained that in order to save himself he had to resort to the use of the knife against his opponent Maiden. This plea of private defense was accepted by the learned Sessions Judge who however held that in inflicting the fatal stab on Maiden, the accused had exceeded his right of private defense. On the strength of such a finding the accused was convicted u/s 304 of the Penal Code and sentenced to undergo rigorous imprisonment for three years. In the appeal preferred against such conviction and sentence, it is contended on behalf of the accused that he had not exceeded his right of private defense and that therefore he is entitled to an acquittal. Regarding the facts that led up to the occurrence in this case there is practically no dispute between the prosecution and the defense. In Koror Amos of Valluvanad Talk, there is a property known by the name of Pezhuthara Parma, which is separated into two plots by a ridge running from north to south along the middle of the compound. The eastern plot was in the possession of the accused and his father, while the western plot was in the possession of deceased Maiden. Disputes arose between the accused and the deceased about the ownership and possession of a jack tree standing on the ridge separating the two plots. P.W. 8, the Village Magistrate at Koror Amos to whom the matter was referred by the rival claimants, could not arrive at a satisfactory solution and so he advised the parties to have the matter settled by having recourse to a civil suit. He also advised the parties not to do anything to the jack tree until the dispute was finally settled by the civil court. Within a few days of the advice thus given by P.W. 8, the occurrence in this case took place on 2-9-1956. At about 10 A.M. on that day the accused cut and removed a few branches of the jack tree. Deceased Maiden who was away from his house, came to know of such an act on the part of the accused only when he returned home in the afternoon. When he had just sat down to take kanji, he saw the accused and his two sisters proceeding to the Pezhuthara Parma. The sight of the accused roused the anger of Maiden and he did not care for the kanji but hastened to the Pezhuthara Parma to meet the accused. Apprehending trouble, Maiden''s wife, P.W. 1, and his mother followed him. On meeting the accused in the Pezhuthara Parma, Maiden questioned the accused about the cutting of the branches of the jack tree. This was followed by a hot exchange of words and also by blows between them. So far both sides agree. But as to the further developments and about the exact situation in which the accused resorted to the use of his knife, there is considerable variation in the versions given by the prosecution witnesses and the accused.

P.Ws. 1 and 3 to 5 are the witnesses speaking to the prosecution version of the occurrence. It is seen that the version given by these witnesses in the committing Court and in the Sessions Court differs considerably in material particulars. Exits. D1 to D5 are extracts from the deposition given by P.W. 1 in the committing Court and these have been marked to contradict a different version given by her in the Sessions Court. The statement of P.W. 3 has been similarly contradicted by Exits. D6 to D11 which are the extracts from the deposition given by him in the committing Court. Exits. D12 to D15 have been marked to contradict the new version given by P.W. 4 in the Sessions Court. P.W. 5 has also been similarly contradicted by Exits. D16 to D18 which are extracts from her deposition in the committing Court. It is clear from these exhibits that in the Sessions Court P.Ws. 1 to 5 have been particularly biased in favor of the prosecution and have shown an anxiety to suppress all details which are strongly in support of the accuser''s plea of private defense. The learned Sessions Judge himself has not fully believed the one-sided version given by these witnesses in the Sessions Court. Apart from the danger of acting on such one-sided version given by these witnesses there is every reason to doubt whether P.Ws. 3 to 5 have really witnessed the occurrence. The first information about the occurrence was given by P.W. 7 who is the younger brother of deceased Maiden. He was working in another compound in the neighborhood of the scene of occurrence, when he heard an alarm from that place. It was then that he ran up to the spot. On the way he saw the accused running away from the scene. By the time P.W. 7 reached the scene of occurrence, other persons from the neighborhood had also gathered there. According to P.W. 7, he saw P.Ws. 3 to 5 also in that group. P.W. 7 has further stated that when he enquired of P.W. 1 and her mother-in-law as to how the occurrence had taken place, P.Ws. 3 to 5 were also present. If these witnesses had really witnessed the occurrence, it is extremely unlikely that they would have withheld that information from P.W. 7. But it is significant to note that there is no indication in Ext. P4, the first information given by P.W. 7 to the police, that P.Ws. 3 to 5 had actually witnessed the occurrence. Among the persons from whom P.W. 7 had gathered the information about the occurrence, the names of P.W. 1 and her mother-in-law are alone mentioned in Ext. P4. When P.W. 7 was examined in the Sessions Court, he stated that he had information that P.Ws. 3 to 5 had seen the occurrence and yet did not mention that fact to the police. If as a matter of fact, he had information that independent witnesses like P.Ws. 3 to 5 had witnessed the occurrence, he would not have omitted to mention that fact in Ext. P4. The non-mention of such a material fact of vital importance in Ext. P4, leads to the legitimate inference that P.Ws. 3 to 5 could have reached the spot only after the occurrence was over and as such they could not have seen how exactly the occurrence had taken place. The admission made by P.W. 3 that he reached the scene of occurrence before other neighbors had gathered there and the admission of P.W. 5 that when he heard the alarm she was inside the house, go to strengthen this inference. Even though P.W. 1 has stated in her evidence that P.Ws. 3 to 5 had seen the occurrence, she too had to admit in her cross examination that P.Ws. 3 to 5 came to the spot only after P.W. 7 had reached the place and that all of them came running at about the same time. Such being the nature of the evidence on record, it will not be safe to place reliance on the evidence of P.Ws. 3 to 5 as to the exact situation in which the accused used his knife against Maiden.

The only other witness speaking to the occurrence is P.W. 1 who is none other than the wife of Maiden. Her evidence is undoubtedly interested, and in her anxiety to support the prosecution version of the occurrence she has suppressed all facts favorable to the accused. The version given by her in the Sessions Court is that on Maiden meeting the accused in his portion of the Pezhuthara Parma, there was exchange of words between the two followed by exchange of blows and that then the accused drew out his knife, caught hold of Maiden by his neck and pressed him down and inflicted a stab on the back. It is further stated that when Maiden was about to fall down, a second stab was again given below the chest. The facts elicited in the cross examination of, P.W. 1 herself clearly go to show that the version given by her cannot be true. She has admitted that on seeing the accused going to Pezhuthara Parma, Maiden suddenly got up from the place where he was sitting to take kanji and hastened to the property saying "I have heard branches have been cut; let me go and see". It is obvious that Maiden was out to take the accused to task for having cut the branches of the jack tree about the ownership of which there was dispute. P.W. 4 has also admitted that she anticipated trouble and that was why herself and her mother-in-law followed Maiden to take him back. Even after reaching the spot these two ladies tried to keep Maiden under control, so as to prevent him front entering into a fight with the accused. But he wriggled out of their hold and approached the accused and got into grips with him. P.W. 1 was reluctant to admit that there was any scuffle between Maiden and the accused. But when confronted with her earlier deposition in the committing Magistrate''s Court where she had stated that after the exchange of words, the accused and Maiden had pushed and pulled each other, P.W. 1 had to concede that there was such pushing and pulling and that it was in the course of such pushing and pulling that the exchange of blows took place. This would indicate that Maiden could not have meekly submitted to the accused catching hold of his neck and keeping him down by one hand and inflicting the stab by the knife in the other hand. It has come out in the evidence on record that Maiden was very much stouter and stronger than the accused. In the Committing Court P.W. 1 had stated that Maiden was the taller and stouter person, but she has chosen to deny that statement when confronted with the same in the Sessions Court. P.W. 3 has also denied his earlier statement marked as Ext. D 8 that Maiden was double the size of the accused. No weight can be attached to these denials and the earlier statements given by P.Ws. 1 and 3 and which are definitely in favor of the accused have to be given their due importance. The probability is that Maiden who had trespassed into the property in the accuser''s possession and had started the fight with the accused, must have continued the fight until he was disabled by the accused by inflicting the stab wounds on him in the course of the scuffle between them. If there had been no grappling between the two and if the stabs on Maiden were inflicted in the manner described by P.W. 1, the accused would not have sustained the injuries found on his person and which are described in his wound certificate Ext. P3 issued by P.W. 6., P.W. 1 has not accounted for these injuries sustained by the accused. That he sustained these injuries in the course of the encounter with Maiden, admits of no doubt. On the date of the occurrence itself he had surrendered to the police who sent him to P.W. 6 for treatment. Ext. P. 3 shows that there were three scabbed superficial scratches on the body of the accused and that these were one on the right side of the abdomen, another on the upper part of the middle of the chest and the third on the right side of the neck. According to P.W. 6, all these injuries could be caused by human finger nails in the course of a scuffle. This opinion of the medical witness goes in support of the accuser''s version that there was a scuffle between himself and Maiden. He has also stated that in the course of the scuffle Maiden had laid his hands on the neck and had pressed it. P.W. 1 who chose to deny this, was not able to otherwise account for the injury found on the accuser''s neck. This circumstance also induce us to believe the version given by the accused in preference to that given by P.W. 1. The fact that the accused has not adduced any independent evidence to conclusively establish that his version of the occurrence is the true one, cannot by itself be a reason justifying the rejection of his plea. He is entitled to take advantage of all the circumstances disclosed by the prosecution evidence itself which lend support to his plea of private defense. If the prosecution evidence is such as to raise a reasonable doubt that the occurrence might have taken place in the manner pleaded by the accused, the benefit of such doubt also must go to him. We have already found that P.W. 1 who is the only witness competent to swear to the details as to how the occurrence developed and terminated, has suppressed material particulars favorable to the accused and has given only a distorted and one-sided version. At the same time there are sufficient materials in her evidence itself to support the defense plea that deceased Maiden was the aggressor and that it was in the course of his aggressive attacks on the accused that he sustained the two stabs at the hands of the accused. There can, therefore, be no doubt that in such a situation the accused had the right to defend himself against the attacks of Maiden.

The only other aspect to be considered is whether the accused has exceeded his right of private defense in inflicting the two stabs on Maiden. The answer to this question does not necessarily depend on the seriousness of the injuries sustained by the aggressor but must largely depend on the dangerous nature of the situation in which the accused had to save himself. The only cause which provoked Maiden to attack the accused was the cutting of a few branches of the jack tree standing on the ridge separating the two portions of the Pezhuthara Parma. There is the evidence of P.W. 8 the Village Magistrate that it was the accused who was taking the fruits from this jack tree for a number of years prior to the occurrence in this case. The cutting of the branches of the tree took place on the morning of the day of the occurrence. Even if deceased Maiden had felt that the accused had done an unlawful act, he could seek redress by starting appropriate legal proceedings against the accused. Instead of doing so, Maiden determined to straight-away to teach the accused a lesson. It was for that purpose that he rushed to the accuser''s plot immediately at the sight of the accused at about 2 P.M. on the day of the occurrence. His wife and mother realized what he was out for, and that was why they followed him with the hope of bringing him back and thus avoiding the anticipated trouble. But their attempt proved futile and he wriggled out of their hold and started the fight with the accused. His antecedents were known to the accused. According to the accused Maiden had involved himself in a series of criminal cases and that everybody in the locality was afraid of him P.W. 1 was not bold enough to deny these facts when she was questioned about the same, but contended herself by pretending ignorance about such matters. It has also come out in evidence that Maiden was definitely stronger and stouter than the accused. It was such an adversary who had come to attack the accused in a wild mood. The attacks soon developed into a grapple between the two, and at one stage of the grapple Maiden had his hands at the throat of the accused, as is evident from the injury on the neck of the accused as noted in Ext. P. 3 wound certificate. In such a situation, the accused had every reason to apprehend death or grievous hurt at the hands of Maiden. In his desperate attempt to avert such possibilities, he could not be expected to pause and to modulate his defensive attacks. He must have been overwhelmed with the feeling that his defense must be effective. The only weapon that was available with him was the knife M.O. 1, and he used it twice against his dangerous adversary. One of the injuries thus caused on the. adversary was on his abdomen, but it was not a dangerous injury. The other injury was on the back and it had penetrated into the chest cavity and had cut the back side of the left lung. This was a fatal injury according to the medical witness, P.W. 6. The evidence of P.Ws. 1, 3 to 5 and 7 is also to the effect that Maiden succumbed to this injury within a few Minutes sustaining it. Even though one of the two injuries Inflicted by the accused while he was trying to extricate himself from the dangerous attacks of Maiden prove fatal, it cannot be said that in thus using the knife the accused had exceeded his right of private defense. It follows therefore that his act does not amount to any offence punishable under law. In the result, this appeal is allowed and the conviction entered against the accused and the sentence awarded to him by the learned Sessions Judge are quashed. The excused is acquitted of the offence charged against him and it is directed that he be set at liberty forthwith.