Vasu vs State Of Kerala

P.B.Suresh Kumar, J.

Accused 1 and 2 in S.C.No.316 of 2012 on the files of the Additional Sessions Court II, Thodupuzha who stand convicted and sentenced for offences punishable under Sections 302 and 324 read with Section 34 of the Indian Penal Code (IPC) are the appellants in this appeal.

The occurrence which is the subject matter of the case took place on 06.02.2009 in a toddy shop. Two persons namely Shiju and Rarichan died and two other persons namely, Umesh Chandran and Thankachan suffered injuries in the said occurrence. The second accused is the son of the first accused. The second accused was a toddy tapper of the toddy shop and the first accused was the food vendor of the same toddy shop. On the previous day of the occurrence namely, 05.02.2009, there was an altercation between the second accused and one Rasheed at the toddy shop. On the date of occurrence, Shiju and Rarichan, injured persons, viz Umesh Chandran and Thankachan and some of their close associates belonging to the political party CPM went to the toddy shop at about 12.45 p.m. on the complaint of Rasheed to question the accused about the occurrence that took place on the previous day. The case of the prosecution is that on account of the enmity the accused developed towards the deceased and the injured for questioning them about the occurrence that took place on the previous day, the first accused attempted to stab Shiju, and when Shiju warded off the said attempt, the second accused hacked at the right armpit of Shiju using his tapping knife and thereafter, the first accused stabbed Shiju on his right abdomen. It is also the case of the prosecution that when Umesh Chandran attempted to obtain the tapping knife from the second accused, the first accused stabbed Umesh Chandran also on his back. It is also the case of the prosecution that when Biju, another person who had accompanied the deceased and the injured, attempted to save Shiju, the second accused stabbed Shiju again. It is also the case of prosecution that the first accused stabbed on the abdomen of Rarichan also in the meanwhile, who attempted to intervene in the altercation. Shiju succumbed to the injuries at about 7.30 a.m. on 07.02.2009 and Rarichan succumbed to the injuries at about 12.40 a.m. on 10.02.2009 while undergoing treatment at the Medical College Hosiptal, Kolenchery. According to the prosecution, the accused have thus committed the offences punishable under Sections 302 and 307 read with Section 34 IPC.

When the accused were committed for trial by the Jurisdictional Magistrate based on the final report filed against them in the case registered by the Adimali Police in connection with the occurrence, the Court of Session framed charges against them and the accused denied the charges. On the accused denying the charges, the prosecution examined 34 witnesses as PWs 1 to 34 and proved through them Exts.P1 to P46 documents. Among the witnesses, PW1 was Umesh Chandran and PW2 was Thankachan. MOs 1 to 28 are the material objects identified by the witnesses. Exts.D1 to D16 are the case diary statements of PW1, PWs 3 to 7, PW12 and PW30. The accused were, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating circumstances brought out by the prosecution in its evidence and they denied the same.

As the Court of Session did not find the case to be one fit for acquittal under Section 232 of the Code, the accused were called upon to enter on their defence. At that stage, the accused have put in a written statement in terms of Section 233(2) of the Code, stating among others, that the deceased, injured and few others including PW4, PW7, PW30 and PW31 came to the toddy shop on the date of occurrence at about 12.30.p.m. and assaulted them and others in the shop; that there occurred a fight consequently therein between those who came to the toddy shop and the staff of the toddy shop and in the course of the fight, PW30 namely, Biju who accompanied the deceased and the injured obtained the tapping knife kept in the toddy shop and hacked several people using the same. It is also stated by the accused in the statement that in the meanwhile, the deceased and injured and others who accompanied them caused injuries to the accused using pieces of firewood and the first accused, in the circumstances, had to brandish the knife he used for preparing dishes to save his life and he does not know whether anyone suffered injuries on account of the same. In essence, the stand taken by the accused in the statement is that the occurrence was not as alleged by the prosecution.

The Court of Session, after considering the materials on record including the the statement put in by the accused under Section 233(2) of the Code, found the accused guilty of the offences punishable under Sections 302 and 324 read with Section 34 IPC and convicted them. The sentence imposed on the accused was imprisonment for life together with fine.

Heard the learned counsel for the accused as also the learned Public Prosecutor.

The learned counsel for the accused, after having taken us through the evidence tendered by the prosecution, submitted that the same would indicate beyond doubt that the occurrence was not as alleged by the prosecution. According to the learned counsel, inasmuch as the occurrence took place in the toddy shop where the accused were working, it has to be presumed that the deceased, injured and their associates are the aggressors. Even assuming that the injuries sustained by the deceased and injured were injuries inflicted by the accused, according to the learned counsel, the acts if any, committed by the accused can certainly be regarded as acts done in exercise of their right of private defence. It was also argued by the learned counsel alternatively that even if it is found that this is a case where the accused have exceeded the right of private defence available to them, they should have been convicted only under Section 304 IPC and not under Section 302 IPC. It was also pointed out by the learned counsel that the accused have been undergoing sentence since 24.11.2015 and that they were in custody prior to the said date also for a period of three months, before they were enlarged on bail. According to the learned counsel, if the offence committed by the accused is brought under Section 304 IPC, the period of custody already undergone can certainly be treated as a punishment proportionate to the gravity of the offence committed by them.

Per contra, the learned Public Prosecutor submitted that even though the deceased, injured and their associates went to the toddy shop to question the accused about the occurrence that took place on the previous day, having regard to the materials on record, it cannot be contended that the said persons are the aggressors, especially since there is nothing on record to indicate that they carried any weapon. According to the learned Public Prosecutor, inasmuch as the injuries intended and inflicted by the accused on the deceased are injuries that are sufficient in the ordinary course of nature to cause death, the trial court cannot be found at fault with for having convicted the accused for the offence punishable under Section 302 IPC. It was also argued by the learned Public Prosecutor that in the absence of any material to indicate that there was any overt act at all either on the part of the deceased or the injured or their associates, it cannot be contended that the accused had a right of private defence at all. In essence, the submission of the learned Public Prosecutor was that the decision of the Court of Session is in order and the appeal is only to be dismissed.

In order to consider the arguments advanced by the learned counsel for the parties on either side, it is necessary to refer only to the relevant evidence on record in the context of the submissions made by the learned counsel. The material evidence is the evidence of the witnesses examined on the side of the prosecution as PWs 1 to 3, 5, 6, 30 and 31.

The witness examined in the case as PW1 is Umesh Chandran who is one among the two who suffered injuries in the occurrence. PW1 testified that when he went to the place called 'Polinjapalam' along with PW30, Biju for some work on the date of the occurrence, PW30 informed PW1 that they need to go to the toddy shop to question the accused in connection with the verbal altercation that took place between the first accused and PW31, Rasheed on the previous day and that Shiju, one among the deceased is also coming with them for the said purpose; that after some time, while they were proceeding to the toddy shop, Shiju, Rarichan, the other deceased, PW2 and PW7 also joined them and that all of them together went to the toddy shop. It was testified by PW1 that Shiju, PW30 and he entered the toddy shop first; that when the said three persons informed the accused that they have come to talk to the accused in connection with the incident that took place on the previous day, the accused did not like the same and consequently there occurred a verbal altercation between the said three persons, namely Shiju, PW30 and PW1 on one side and the accused on the other side, followed by a physical altercation. PW1 testified that by the time, the first accused took the knife and when the first accused did so, PW1 ran out of the shop. PW1 testified that when he went back inside the shop on hearing a sound therefrom, PW1 found Shiju with blood on his body. PW1 testified that the accused were then holding a knife and a tapping knife and there was blood on those knives also. PW1 testified that as he apprehended that the accused would attack Shiju again, PW1 along with PW30 grabbed the knife carried by the second accused and by the time, the first accused stabbed on the back of PW1. PW1 testified that by the time, the second accused took out another knife from his waist and stabbed Shiju again. PW1 testified that he then went out of the shop along with PW30 and by the time, PW31, Rarichan and PW2 entered the shop. PW1 identified his signature in Ext.P1 First Information Statement, on the basis of which the case was registered. PW1 also identified MO1 as the tapping knife carried by the second accused, MO2 as the knife carried by the first accused and MO3 as the knife taken out by the second accused from his waist. During cross-examination, PW1 testified that it was only after the physical altercation that took place in the shop that the accused took out the knives. PW1 also testified in cross-examination that even though PW1 did not inflict any injury to the accused, the accused were chased out by some of their associates using pieces of firewood. The suggestion made to PW1 by the learned counsel for the accused was that PW1 along with others have come to the toddy shop and inflicted injuries on the accused and it is in the course of the fight that occurred consequently, the deceased and others sustained injuries, and PW1 denied the suggestion.

The witness who was examined as PW2 is Thankachan who suffered injuries in the occurrence. PW2 testified that while he was going to Adimali in an Omni car along with Rarichan, Shiju and PW7 joined them; that when they reached the place called Madampadi, Shiju received a call requiring him to go to the toddy shop; that they accordingly proceeded to the toddy shop and after dropping Shiju at the toddy shop, while they were waiting inside the car outside the toddy shop, they heard a noise from the toddy shop and when PW2 and Rarichan entered the toddy shop hearing the noise, Shiju was lying on the floor in a pool of blood and the accused were standing with knives. PW2 testified that when he attempted to save Shiju, the second accused stabbed on his abdomen and the first accused stabbed Rarichan on his chest. During cross-examination, PW2 testified that he went to the toddy shop as instructed by Shiju who used to interfere in party matters and that while PW2, Rarichan and PW7 were entering the toddy shop, PW1 and PW30 were coming out of the shop and that PW30 was holding a knife then. The suggestion made to PW2 during cross-examination was that he suffered the injury in the physical altercation between the staff of the toddy shop and those who accompanied him. PW2 denied the said suggestion.

The witness who was examined as PW3 was one John alias Baby. PW3 was the salesman in the toddy shop at the time of occurrence. It is seen that since PW3 testified that he had no knowledge as to how the deceased sustained injuries, the learned Public Prosecutor obtained permission from the Court and examined PW3 under Section 154 of the Indian Evidence Act. In cross-examination, it was testified by PW3 that when PW30 and others came to the toddy shop, there was a group clash therein and the wall which existed in the toddy shop, was smashed down on account of the same. PW3 stated in cross-examination that he did not inform the Police that those who came to the toddy shop, inflicted injuries on the accused.

The witness who was examined as PW5 is one Baby Mathai. PW5 had acquaintance with the accused as also the deceased and the injured. PW5 testified that while he was having food in the toddy shop, the accused were in the shop and when a few persons therein and the accused began to abuse each other, he went outside therefrom. PW5 further testified that he could see the occurrence through a hole in the wall of the toddy shop; that he saw Shiju entering the toddy shop uttering abusive words and hitting the second accused. PW5 further testified that the first accused gave a kick to Shiju and the latter fell down on account of the same; that the first accused then stabbed Shiju using a knife; that the second accused then ran out of the toddy shop through the back door and came to the front of the toddy shop. It was testified by PW5 that in the meanwhile, the first accused stabbed Shiju when he got up from the floor. It is seen that since PW5 testified that he did not see the rest of the occurrences, the learned Public Prosecutor obtained permission from the Court and examined PW5 under Section 154 of the Indian Evidence Act. In cross-examination, PW5 testified that on entering the toddy shop, Shiju hit on the cheek of the second accused.

The witness who was examined as PW6 is one Saji. PW6 had acquaintance with the accused as also the deceased and PW1. PW6 was having food from the toddy shop at the time of occurrence. PW6 testified that he saw the first accused stabbing Shiju. Since this witness did not support fully the prosecution case, he was also examined by the Public Prosecutor in terms of Section 154 of the Indian Evidence Act. In cross-examination, PW6 testified that there was a quarrel inside the toddy shop between the accused who were present therein and those who came from outside and PW6 further testified that there was consequent physical altercation.

The witness who was examined as PW30 was none other than Biju who brought PW1 and others to the toddy shop. PW30 testified that he went to the toddy shop to settle the dispute between the accused and PW31, Rasheed and that while he was remaining in the toddy shop after settling the issue, PW30 saw Shiju and a few others coming out of an Omni car; that PW1 and PW30 then heard a noise from inside the toddy shop and that they saw Shiju coming out therefrom with blood on his body. PW30 also testified that later PW2 also came out of the toddy shop with blood on his body. Needless to say, even PW30 did not the support the case of the prosecution in full as regards not knowing who stabbed the deceased.

The witness who was examined as PW31 is none other than Rasheed, who was stated to have picked up a quarrel with the accused on the previous day. PW31 also did not support the case of the prosecution. The only evidence let in by PW31 was that when he reached the toddy shop, he saw Shiju coming out of the toddy shop injured. In cross-examination, PW31 admitted that there was an altercation on the previous day; that when he informed the matter to Shiju, Shiju assured that he will question the accused and that Shiju and others are party workers. PW31 also admitted in cross-examination that all of them went to the toddy shop to question the accused in connection with the occurrence that took place on the previous day.

Among the remaining witnesses, PW23 is the doctor who conducted the autopsy of the bodies of the deceased. PW23 deposed that the death of Shiju was due to the injury sustained by him to his abdomen and left axilla. Ext.P22 is the autopsy report issued by PW23 in this regard. PW23 also deposed that the death of Rarichan was due to the injury suffered by him on his chest and abdomen. Ext.P23 is the autopsy certificate issued by PW23 in this regard. In cross-examination, PW23 deposed that the smell of alcohol was noted in the abdomen of Shiju. Even though a suggestion was made to PW23 that the injuries suffered by the deceased are possible if one waves weapons forcefully during a scuffle, PW23 denied the suggestion. It was also clarified that the smell of alcohol found in the abdomen of Shiju is due to consumption of alcohol.

PW32 was the investigating officer. In cross-examination, PW32 admitted that he found a few blood stained pieces of firewood inside and outside the toddy shop. PW32 also admitted that there was a wall near the place where PW3, the salesman sits inside the toddy shop and the same was damaged. PW32, however, pleaded that he does not know whether the said wall was damaged by the deceased, injured and their associates. The relevant portion of the deposition of PW32 read thus:

“salesman ഇര കന ഭ ഗ അരഭ ത  ക ട യ ടണ  . അത ന ക ടപ ട  പറ യ രന. ഷ പ   ആകമ ക   ക%നവ  %വട കപ ള ചത ക+  എന  അറ യ ല.”

Though PW32 admitted in cross-examination that when the accused were arrested, there were injuries on their bodies, PW32 explained that the accused informed him that they sustained the injuries on account of a fall while running. PW32 also admitted in cross-examination that he caused the accused to be medically examined and the accused stated to the doctor that the injuries found on their bodies are injuries inflicted by others. PW32 also admitted that the doctor who examined the accused was not cited as a witness in the case. PW32 also stated in cross-examination that it was not revealed during investigation that those who came to the shop assaulted the accused. When a specific question was put in this regard to PW32, he gave an evasive answer. The question and answer read thus:

"അന  ഷ പ   ആകമ    വന  ആയ ര ക  അട ചത ?അതറ യ ല.”

When PW32 was questioned about the physical altercation, the stand taken by PW32 was that he did not register any case in connection with the same as it was not a cognizable offence. When the investigating officer was questioned as to the reason for the tear of the clothes of the accused, the answer of PW32 was again evasive. The question and answer read thus:

"പത  ളകട ഷ ട   2റ യ രന. പ ട വല  കട   2റ യത ക+ ? എവ കട എങ ല ഒടക യ ല  2റ .”

When PW32 was questioned the reason as to why blood stains were not found on MO1 tapping knife when sent for forensic examination, PW32 did not have a proper answer.

As noted, it is the case of the prosecution that the deceased, injured and their associates of the political party CPM went to the toddy shop on the date of occurrence to question the accused about the altercation that took place on the previous day in the toddy shop between the accused and PW31, Rasheed. It has come out that even though PW30, Biju who went to the toddy shop first managed to settle the issue and came out therefrom, Shiju who came later drunk, entered inside the toddy shop again uttering abusive words and hit the second accused. It has also come out from the said evidence that there was a verbal altercation then at the toddy shop followed by a physical altercation between the staff of the toddy shop on one side and those who came to the toddy shop on the other side. If the occurrence was not as stated above, there would not have been any injuries on the body of the accused, even though the same were not of any serious nature. The blood stained pieces of firewood found at the scene of occurrence, the tear in the clothes worn by the accused and the damage caused to the wall inside the toddy shop, all reinforce the said conclusion of ours that there was a verbal altercation followed by a physical altercation between the staff of the toddy shop on one side and those who went to the toddy shop on the other side. It has also come out that it was under the said circumstances, that the first accused had taken the knife which he uses in the kitchen and the second accused took out the tapping knife. The stand taken by the accused that they have not inflicted any injuries on the deceased and the injured namely PW1 and PW2, cannot be accepted. Even though the occurrence was not exactly as alleged by the prosecution, it has come out that it was the accused who caused the fatal injuries to the deceased. Similarly, it has come out that it is the accused who have caused injures to PWs 1 and 2 also. Even while holding so, it is necessary to mention that it is doubtful as to whether MO1 tapping knife was used by the second accused to inflict injury on Shiju, as the said weapon which is stated to have been grabbed from the second accused by PW30 and handed over to the police, did not contain any blood stains. In other words, the injuries suffered by Shiju on his right armpit might not have been inflicted using MO1 tapping knife. It is all the more so since, no witness has claimed to have seen the second accused inflicting the injury on the right armpit of Shiju. But, merely for the reason that the prosecution did not prove as to how Shiju sustained one of the said injuries, the prosecution case cannot be rejected in toto. The accused do not dispute the fact that the death of Shiju and Rarichan was due to the injuries sustained by them in the occurrence. As such, inasmuch as it is found that the fatal injuries suffered by the deceased and the injuries suffered by PWs 1 and 2 were inflicted by the accused, it can certainly be concluded that the accused caused the death of the Shiju and Rarichan and injured PWs 1 and 2.

The next question is whether the acts committed by the accused can be said to be done in exercise of their right of private defence. No doubt, every person has a right to defend not only his own body but also the body of any other person, against any offence affecting human body. But, the said right is subject to the restrictions contained in Section 99 IPC. Section 99 IPC clarifies that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 IPC provides that the right of private defence of the body extends, under restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be any of the descriptions enumerated therein. Seven categories of cases are mentioned in Section 100 of which only categories “First” and “Secondly” are relevant in the context of the present case as the same would not fall under any other categories of the said Section. Category First is cases involving assault which may reasonably cause the apprehension that death will otherwise be the consequence of such assault and category Secondly is cases involving assault which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. “Assault” as defined in Section 351 including the illustration (a) to the Section read thus:

“351. Assault.—Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.

Explanation.—Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.

Illustrations

(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z. A has committed an assault.

(b) x x x x

(c)

x x x x.”

In the case on hand, having regard to the evidence let in by the parties, it can certainly be held that Shiju had not only assaulted the second accused but also voluntarily caused hurt to him. But, the question is whether the assault committed by Shiju was sufficient to cause a reasonable apprehension among the accused that death or grievous hurt will otherwise be the consequence of such assault. There is nothing on record to indicate that the deceased, injured and their associates had carried any weapon with them when they went to the toddy shop to question the accused. The evidence would only suggest that they used pieces of firewood to inflict injuries on the accused and others. In other words, we are of the view that though the deceased, injured and their associates committed assaults on the accused and others, the assaults were not of such nature, as to cause the apprehension that death or grievous hurt will otherwise be the consequence of such assaults. If that be so, it has to be held that the accused have very much exceeded the right of private defence available to them, for it is by now settled that while exercising the right of private defence, the act shall not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended [See Sikandar Singh v. State of Bihar, (2010) 7 SCC 477].

The evidence tendered by PW23 and the autopsy certificates indicate that the bodily injuries intended to be inflicted by the accused on the deceased, are sufficient in the ordinary course of nature to cause death and would, therefore, fall under “Thirdly” to Section 300 IPC. The question that remains to be considered, therefore, is whether the case on hand would fall within the scope of Exception 2 to Section 300. Exception 2 provides that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. The fact that there was no premeditation on the part of the accused to cause the death of Shiju and Rarichan cannot be disputed. In the nature of the occurrence that took place, according to us, it cannot be contended that the accused had any intention of doing more harm than was necessary for the purpose of defence, especially since the only motive attributed to them for having inflicted injuries is that they did not like Shiju and others questioning them about the occurrence that took place on the previous day. In the circumstances, according to us, the case on hand is certainly one that falls within the scope of Exception 2 to Section 300 IPC. If that be so, the accused could have been convicted only under Part-II of Section 304 IPC.

The learned counsel for the accused did not address any argument as regards the finding against the accused that they committed the offence punishable under Section 324 IPC, presumably as the accused have already undergone punishment inflicted on them for the said offence.

Coming to the sentence part, as pointed out by the learned counsel for the accused, the accused are undergoing sentence since 24.11.2015 and they were in custody prior to the said date also for a period of three months. In other words, they have undergone imprisonment for almost eight and a half years and according to us, the said period of imprisonment is sufficient for the offence found to have been committed by the accused that falls under Part-II of Section 304 IPC.

In the result, the appeal is allowed in part, the conviction of the appellants is altered to Part-II of Section 304 IPC, and the period of imprisonment already undergone by the appellants is treated sufficient for the offences committed. Registry is directed to communicate the above order forthwith to the concerned prison, where the appellants are undergoing incarceration.